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3-25-2021 
State v. Falk Appellant's Brief Dckt. 48311 
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"State v. Falk Appellant's Brief Dckt. 48311" (2021). Not Reported. 7070. 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48311-2020
Plaintiff-Respondent, )
) ADA COUNTY
v. ) NO. CR01-19-50247
)
CRAIG ROBERT FALK, ) 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 JASON D. SCOTT
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
ANDREA W. REYNOLDS Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
I.S.B. #9525
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
ATTORNEYS FOR ATTORNEY FOR
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT
Electronically Filed
3/25/2021 10:47 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ...................................................................................................... ii
STATEMENT OF THE CASE ................................................................................................... 1
Nature of the Case ........................................................................................................... 1
Statement of Facts and
Course of Proceedings ..................................................................................................... 1
ISSUE PRESENTED ON APPEAL ............................................................................................ 4
ARGUMENT .............................................................................................................................. 5
 The District Court Abused Its Discretion When It Sentenced Mr. Falk To
 A Unified Term Of Twenty Years, With Nine Years Fixed, For
 Aggravated Battery, And Ten Years Fixed For Burglary ....................................................... 5
CONCLUSION ........................................................................................................................... 8
CERTIFICATE OF SERVICE .................................................................................................... 9
ii
TABLE OF AUTHORITIES
Cases
North Carolina v. Alford, 400 U.S. 25 (1970) .......................................................................... 1, 2
State v. Jackson, 130 Idaho 293 (1997) .......................................................................................5
State v. Varie, 135 Idaho 848 (2001) ............................................................................... 5, 6, 7, 8
Statutes
Idaho Code § 19-2522 .................................................................................................................2
1
STATEMENT OF THE CASE
Nature of the Case
Craig Robert Falk, a Georgia resident with no criminal history, pled guilty pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970), to aggravated battery with a deadly weapon
enhancement and burglary, despite having no recollection of his criminal conduct. The district
court sentenced Mr. Falk to a unified term of twenty years, with nine years fixed, for the
aggravated battery, and ten years fixed for the burglary. Mr. Falk appeals from his judgment of
conviction, challenging his sentences as an abuse of discretion. While the facts of this case are
certainly disturbing, Mr. Falk should not be imprisoned in Idaho, at taxpayer expense, when he
was assessed as presenting a low risk to reoffend, and his criminal conduct can be easily traced
back to his brother, whose ex-wife was the target of Mr. Falk’s assault.
Statement of Facts and Course of Proceedings
Mr. Falk, a  resident of Georgia, traveled from Georgia to Idaho to help his
brother, Roger Quinn. (See Tr., pp.19, 25, 46.) Mr. Falk believed Roger was suicidal on account
of his divorce, and believed Roger’s ex-wife, Karen Quinn, was abusing Roger and Karen’s
 daughter. (Tr., pp.19, 25.) This was not a delusion on Mr. Falk’s part—rather, he
was relying on information he received from his brother, after being estranged from him for over
30 years. (Tr., p.47; Conf. Exs., p.213.) A sheriff’s detective testified that Mr. Falk said “[h]is
brother had called him, spent hours on the phone with him talking about the abuse that his
daughter was supposedly suffering, how psychotic Karen was, and . . . kind of painting Karen
out to be a horrible person and abusive towards her daughter.” (Tr., p.26.) Based on what his
brother had told him, Mr. Falk believed “[Karen] needed to stop.” (Tr., p.19.)
2
Mr. Falk, who had never before been to Boise, flew to Utah, and then drove to Boise,
apparently in an effort to “scare” Karen. (Tr., p.19.) Mr. Falk claims that, without any urging
from his brother, he drove to Karen’s house on the day after Thanksgiving, and waited for her to
return home. (Tr., p.19.) He entered her garage and attacked her with a metal bar—in his
words—a “prop.” (Tr., p.19.) Karen testified that when she saw Mr. Falk in her garage, she did
not recognize him, but “thought he was there to kill me or something based on a contentious
relationship I have with my ex-husband, who has threatened to kill me in the past.” (Tr., p.13,
L.21 – p.14, L.14.) Karen sustained significant injuries. (Tr., p.21, Ls.12-22.) Roger and Karen’s
 daughter witnessed the assault. (Tr., p.19, L.15 – p.20, L.2.)
When interviewed afterwards, Roger told the detective about his allegations of abuse, and
said “he felt that Karen was psychotic and was having affairs, and just a whole host of items.”
(Tr., p.28.) The detective was asked whether, in his opinion, Mr. Falk planned the assault against
Karen himself, and the detective answered, “I believe he had the help of his brother.” (Tr., p.29.)
The State charged Mr. Falk by Information with aggravated battery with a deadly weapon
enhancement and burglary. (R., pp.42-43.) Mr. Falk pled guilty pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970), without the benefit of a plea agreement. (Tr., p.16.) At the change of
plea hearing, he told the district court he “was indeed involved in this horrifying event” but could
not remember anything after it started. (Tr., p.18.) He said he had “no premeditated or
malevolent intent at all.” (Tr., p.18.) The district court accepted Mr. Falk’s plea, and ordered that
he undergo a psychiatric evaluation pursuant to Idaho Code § 19-2522. (Tr., pp.20-21; R., pp.73-
74.) Following that evaluation, the district court sentenced Mr. Falk for aggravated battery with a
deadly weapon enhancement to a unified term of twenty years, with nine years fixed. (Tr., p.53.)
For burglary, the district court sentenced Mr. Falk to ten years fixed, to be served concurrently.
3
(Tr., p.53.) The judgment of conviction was entered on September 10, 2020, and Mr. Falk filed a
timely notice of appeal. (R., pp.85-91.)
4
ISSUE
Whether the district court abused its discretion when it sentenced Mr. Falk, a 
Georgia resident with no criminal history, to a unified term of twenty years, with nine years
fixed, for aggravated battery, and ten years fixed for burglary.
5
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Mr. Falk To A Unified Term Of
Twenty Years, With Nine Years Fixed, For Aggravated Battery, And Ten Years Fixed For
Burglary
The Idaho Supreme Court has held that where, as here, a district court imposes a sentence
within statutory limits, the 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)
(quotation marks and citation omitted). In order to succeed on appeal under this standard, an
appellant “must establish that, under any reasonable view of the facts, the sentence was excessive
considering the objectives of criminal punishment,” which are deterrence, the possibility of
rehabilitation, punishment or retribution for wrongdoing, and the protection of society. State v.
Varie, 135 Idaho 848, 856 (2001) (citation omitted). Mr. Falk can make the necessary showing,
as his aggregate sentence was excessive considering these four objectives in light of the highly
unusual circumstances of this case.
Mr. Falk’s sentence cannot be justified by the first objective of criminal punishment,
which is deterrence of the individual and the public generally. See Varie, 135 Idaho at 856.
Mr. Falk entered an Alford plea without the benefit of a plea agreement, as he accepted
responsibility for his actions, but was adamant that he never intended to harm Karen and could
not recall exactly what occurred. (Conf. Exs., p.28.) He told the presentence investigator:
My realization of violence is personally unresolved as the gap in my memory
remains, and I simply don’t know what exactly happened. But what I do know is
that I approached [Karen] with the intent to only scare her—to urge her to stop
abusing my  niece, and to beseech her to stop terrorizing my brother as
he neared suicidal surrender. Also, I do know, and forthrightly state, that physical
violence was never planned nor ever intended at any point. And one final
certainty is that I will never be involved in anything even close to violent behavior
in the future.
6
(Conf. Exs., pp.15-16.) Indeed, Mr. Falk’s violent actions were entirely out of character for him,
and appear to stem from some—clearly misplaced—loyalty to his brother and commitment to
help out in a situation he completed misunderstood. (See Conf. Exs., p.16.) He believed his long-
lost brother was suicidal, and understood from his brother that Karen “physically and mentally
abused” their daughter, and was herself mentally unstable. (Conf. Exs., p.20.) Mr. Falk views
himself as possessing “an acute sense of empathy” and appears to have acted without questioning
his brother in any way, and without considering the consequences of his actions. (Conf. Exs.,
p.21.) Mr. Falk may have been uniquely vulnerable to his brother’s stories, based on his own life
experience, but it is hard to imagine how he, or anyone in a similar situation, could have been
deterred.
Mr. Falk’s sentence cannot be justified by the second objective of criminal punishment,
which is the possibility of rehabilitation. See Varie, 135 Idaho at 856. It is not clear what
rehabilitation Mr. Falk might need, apart from having no contact with his brother. Mr. Falk had
no prior arrests, and this was his first felony conviction. (Conf. Exs., pp.9, 14.) Mr. Falk has no
alcohol or drug problems, and no history of violence. (Conf. Exs., p.12.) Mr. Falk struggled with
depression following his own divorce, and was hospitalized in Georgia on two prior occasions.
(Conf. Exs., pp.9, 14.) At sentencing, Karen described the crime as “a horrific error in judgment
that has affected so many people.” (Tr., p.37.) Karen’s statement is accurate. Mr. Falk made a
horrific error in judgment in believing his brother without question, and trying in some distorted
fashion to help out. He described himself as being “horrified, appalled, and utterly bewildered by
[his] violent behavior.” (Conf. Exs., p.28.) But it is not clear how incarceration could possible
aid in Mr. Falk’s rehabilitation.
7
Mr. Falk’s sentence also cannot be justified by the third objective of criminal
punishment, which is punishment or retribution for wrongdoing. See Varie, 135 Idaho at 856.
Mr. Falk was  when he committed the crimes at issue, and was on disability
following a heart attack he suffered in 2013. (Conf. Exs., p.212.) Unless his sentence is reduced,
he will likely die in prison. While his conduct is deserving of punishment, it should not deprive
him of his freedom forever.
At sentencing, Karen spoke directly to Mr. Falk, saying: “Do you remember the first and
only thing that I said to you that night, Mr. Falk? . . . I asked you if you were there to kill me as
soon as I saw your face, before I even saw the weapon. Why would I say that? Because your
brother threatened to kill me on multiple occasions, Mr. Falk, and he used you to try to do if. If
only you understood that.” (Tr., p.37.) It appears that Mr. Falk developed some understanding of
how he was misled by his brother over the course of these proceedings. He apologized to Karen
at sentencing, stating: “Any words are going to be grossly inadequate, but to [Karen] and
[Karen’s daughter], I am so very, very, very, very sorry.” (Tr., p.50.) He continued:
Just three days ago, I had my attorney read to me Judge McDevitt’s findings of
fact [from Robert and Karen’s divorce proceedings]. I heard things about my
brother that left me stunned, stunned with the sudden revelation that Roger was
not the person I thought he was. Oh, my God. Not that person at all. Not the lost
brother that had finally found true meaning in his life through his love for [his
daughter], but here was someone with a far more perverse agenda. Was I blinded
by calculated emotional onslaught? Had I portrayed Mr. and Mrs. Quinn in their
exact opposite roles? Oh, my God. To Mrs. Quinn and [her daughter], I am so
very, very, very, very sorry.
(Tr., p.50.) This is a highly unusual case, but it appears the primary person responsible for Karen
being attacked was neither charged nor convicted, and Mr. Falk may be considered, in some
ways, a victim of his brother, too.
8
Finally, Mr. Falk’s sentence cannot be justified by the fourth objective of criminal
punishment, which is the protection of society. See Varie, 135 Idaho at 856. Mr. Falk was
assessed as having a “very low level of psychopathy.” (Conf. Exs., p.216.) He was determined to
present a low risk of engaging in future general violence, and was determined to present a low
risk to the public. (Conf. Exs., pp.113, 216-17.) While Mr. Falk could arguably present a
continued risk to Karen, that risk would be lessened by the no-contact order that the district court
entered (which is not challenged on appeal), and would surely be lessened even more if Mr. Falk
returns to Georgia.
This is a very unusual case. While the crimes Mr. Falk committed were horrific, and will
have a lasting impact on Karen and Karen and Roger’s young daughter, a lengthy term of
imprisonment is not warranted. The district court abused its discretion at sentencing, and should
have suspended Mr. Falk’s sentence or retained jurisdiction.
CONCLUSION
Mr. Falk respectfully requests that this Court reduce his sentence as it deems appropriate.
Alternatively, he requests that the Court remand this case to the district court for a new
sentencing hearing.
DATED this 25th day of March, 2021.
/s/ Andrea W. Reynolds
ANDREA W. REYNOLDS
Deputy State Appellate Public Defender
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 25th 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
AWR/eas


English

State v. Falk Appellant\u27s Brief Dckt. 48311

https://digitalcommons.law.uidaho.edu/not_reported/8082/thumbnail.jp

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Not Reported Idaho Supreme Court Records & Briefs 
3-17-2021 
State v. McMurty Appellant's Brief Dckt. 48333 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. McMurty Appellant's Brief Dckt. 48333" (2021). Not Reported. 7083. 
https://digitalcommons.law.uidaho.edu/not_reported/7083 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator 
of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu. 
1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KIMBERLY A. COSTER
Deputy State Appellate Public Defender
I.S.B. #4115
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. 48333-2020
)
v. ) ADA COUNTY NO. CR01-18-60249
)
APRILLYN MICHELLE MCMURTRY, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Aprillyn Michelle McMurtry pled guilty to felony DUI and the district court imposed a
unified prison sentence of ten years, with three fixed, without any opportunity for probation.  The
court also denied Ms. McMurtry’s subsequent Criminal Rule 35 motion for reduction of
sentence.  On appeal, Ms. McMurtry claims that her sentence is excessive under any reasonable
view of the facts, including those presented with her Rule 35 motion, and represents an abuse of
the district court’s sentencing discretion.  She respectfully asks this Court reverse the order
denying her Rule 35 motion, vacate her sentence, and remand her case for resentencing.
Electronically Filed
3/17/2021 10:33 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts and Course of Proceedings
On December 21, 2018, Ms. McMurtry got a call from her estranged biological father,
who said he was dying and wanted to see her. (Tr., p.26, Ls.20-22; R., p.51.)  Ms. McMurtry was
shaken, and though she had been sober for six months, she made a terribly poor choice to drink
and drive.  (PSI, p.178; Tr., p.26, Ls.20-22.)  She rear-ended a truck and was arrested for driving
while under the influence of alcohol (“DUI”).  (PSI, p.178.)
The State subsequently charged Ms. McMurtry with felony DUI, as records showed she
had previous DUI convictions.  (R., pp.10, 18, 22.)  Ms. McMurtry pled guilty to the charge,
without plea bargain. (R., pp.18, 22-36; PSI, p.176.) While on pretrial supervision,
Ms. McMurtry began a rigorous outpatient treatment program, attended AA meetings, submitted
to random U.A. testing, and maintained “excellent” communication with her pretrial supervisor.
(R., p.51; PSI, p.181.)  She continued her employment with J.R. Simplot, and took an additional
job to pay for her treatment.  (PSI, p.339; Tr., p.21, Ls.1-11.)
At her sentencing hearing, Ms. McMurtry asked the court to place her on probation with
an underlying suspended sentence of ten years, with two fixed.  (Tr., p.25, Ls.1-15.)  The State
recommended a period of retained jurisdiction, and a unified sentence of ten years, with six years
fixed.  (Tr., p.12, Ls.4-7, p.15, Ls.10-22.)  The district court rejected both parties’ requests for a
chance at probation and imposed a prison sentence of ten years, with three years fixed.
(Tr., p.31, Ls.17-20; R., p.41.)
Ms. McMurtry timely filed an Idaho Criminal Rule 35 motion requesting a reduction of
her sentence, together with new and additional information in support of her request.  (R., pp.45-
103.)   The district court entered an order denying the motion, then later re-entered that order in
3
accordance with its order granting Ms. McMurtry’s petition for post-conviction relief.
(R., pp.103, 107; Aug.R.)1   Ms. McMurtry filed a timely Notice of Appeal.  (R., p.111.)
       ISSUE
Did the district court abuse its discretion by imposing an excessive sentence and by denying
Ms. McMurtry’s motion for reduction of sentence?
ARGUMENT
The District Court Abused Its Discretion By Imposing An Excessive Sentence And By Denying
Ms. McMurtry’s Motion For Reduction Of Sentence
A. Introduction
Ms. McMurtry asserts that in light of the mitigating facts presented in her case, her
unified sentence of ten years, with three years fixed, is excessive, and that the district court
abused its discretion by denying her request to reduce the fixed portion of her sentence, from
three years to two.
B. Standard Of Review
The district court’s sentencing decisions are reviewed under the multi-tiered abuse of
discretion standard. State v. Miller, 151 Idaho 826, 834 (2011).  Under this standard, the
appellate court engages in a multi-tier inquiry to determine “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;
1 The Order Granting Post-Conviction Relief, filed September 14, 2020, ordered re-entry of the
earlier order denying the Rule 35 motion, “solely to reopen the respective appeal periods.” (Ada
County Case No. CV01-20-04550).  Ms. McMurtry’s Motion To Augment with a copy of the
post-conviction order is being filed contemporaneously with the Appellant’s Brief.
4
and (4) reached its decision by the exercise of reason.” State v. Le Veque, 164 Idaho 110, 113
(2018).
When a defendant challenges her sentence as excessively harsh, the appellate court will
conduct “an independent review of the record,” giving consideration to governing criteria, i.e.,
the nature of the offense, the character of the offender, and the protection of the public interest.
Miller, 151 Idaho 828.  The appellate court will deem the sentence to be excessive if the sentence
is unreasonably harsh “under any reasonable view of the facts.” See State v. Strand, 137 Idaho at
460; State v. Toohill, 103 Idaho 565, 568 (Ct. App. 1982).  These same criteria apply on review
of the district court’s denial of a defendant’s Rule 35 motion for reduction of sentence. State v.
Trent, 125 Idaho 251, 253 (Ct. App. 1994).
Ms. McMurtry asserts that, in view of the mitigating facts of her case, including those
presented with her Rule 35 motion, the fixed three-year portion of her sentence is excessive and
objectively unreasonable, representing an abuse of discretion under the fourth prong of the
abuse-of-discretion standard.
C. Ms. McMurtry’s Sentence Was Excessive And Objectively Unreasonable, In Light Of
The Mitigating Facts Of Her Case
Ms. McMurtry was  at the time of her sentencing.  (PSI, p.177.)  Her
biological father left the family when she was a baby, and when she was four, he gave up his
parental rights.  (PSI, p.182.)  Despite the deep pain from knowing her father abandoned her,
McMurtry has always been grateful for the support and opportunities provided by her family: a
loving mother and adoptive father, numerous aunts and uncles, and especially her two now-
grown children – a son and a daughter – with whom she is very close.   (PSI, pp.182-83.)
5
Ms. McMurtry grew up in “a big horse family” riding horses and participating in rodeos,
and she became a champion rider.  (PSI, p.206.)  She has shared her passion for horses with her
children.  (PSI, p.206.)  According to her children, she is a good mom who has always supported
them emotionally and shared their interests.  (PSI, p.206.)
Ms. McMurtry has worked hard her whole life to become a valuable, contributing
member of society.  She earned her bachelor’s degree at the University of California, Berkeley,
majoring in business. (PSI, p.188.)  She has decades of work experience in logistics, and she
remained employed by the J.R. Simplot company even after her arrest, up until she was
sentenced.  (PSI, pp.185, 188.)
It was only later, in her forties, in the midst of a since-failed twenty-year marriage, that
Ms. McMurtry turned to drinking to cope with her feelings of inadequacy and abandonment.
(PSI, pp.181, 205.)   She accrued six DUIs, without ever addressing her underlying abandonment
issue that had impacted all of her relationships, and without engaging in meaningful alcohol
abuse treatment.  (PSI, p.189; R., p.50.)  However, the triggering phone call from her estranged
father on December 21, her relapse, and the ensuing collision, made clear to Ms. McMurtry that
she must address both of these difficult issues.  (R., p.51.)  Ms. McMurtry accepted the challenge
and she has made remarkable progress in regaining control of her life.  (R., p.51.)
Immediately following her arrest, Ms. McMurtry voluntarily began treatment.  She
enrolled herself at Ashwood Recovery and participated in didactic group therapy, individual
counseling, and family counseling, and she submitted to urinalysis screenings and received
ongoing stabilization services.  (R., pp.51-52.)  She also participated in the Healing Therapy
Trauma Group, and Eye Movement Desensitization and Reprocessing Therapy (EMDR), to help
address the issues from her past that were ultimately causing her excessive drinking.  (R., p.51.)
6
She has worked to overcome potential obstacles to that treatment.  For example, when her
insurer denied coverage, Ms. McMurtry took on a second job with a dry cleaner to pay so that
she could continue to pay for treatment.  (R., p.52.)  Later, when Ashwood suggested a lower
level of care, Ms. McMurtry persuaded the program to keep her in its outpatient program and
continue regular treatment.  (R., p.52.)  She began living free of depression for the first time in
her life.  (Tr., p.21, Ls.5-11.)
In addition to the treatment program at Ashwood, Ms. McMurtry attended daily AA
meetings beyond the 90-consecutive-day goal, and she was working to complete AA’s 12-step
program with her sponsor right up until she was sentenced.  (R., p.53.)  She told the sentencing
court how much that support has helped her turn her life around.  (Tr., p.27, Ls.2-11.)
Ms. McMurtry also submitted numerous letters from family members and from peers in the
recovery process, all describing Ms. McMurtry’s growth in self-awareness, her courage, honesty,
and her dedication to sobriety.  (PSI, pp.205-14.)
After she was sentenced to prison and removed from treatment and her AA support,
Ms. McMurtry continued to seek out every available opportunity to improve herself and give
back to her community. As demonstrated in her Rule 35 motion and accompanying
memorandum, Ms. McMurtry completed seven e-learning courses at the county jail before being
transported to the Pocatello Women’s Correctional Center (PWCC). (R., p.54.)  Although she
was not eligible for most of the programming at PWCC, she attended the one treatment that was
available: a once-a-week AA meeting.  (R., p.54.)  She made herself productive by volunteering
as a janitor. (R., p.54.)
Later, Ms. McMurtry was transferred to South Idaho Correction Institution (SICI), and
enrolled in all of the available coursework:  Cognitive Behavioral Intervention for Substance
7
Abuse (CBI-SA) and the Pre-Release program.  (R., pp.55-56.)  She also completed training and
became a certified Inmate Companion, so that she could help IDOC staff watch over suicidal
inmates.  (R., pp.57, 87.)  She passed the Idaho State Library Clerk Test – the first woman to do
so in two years – and is now qualified to work at any Idaho library.  (R., p.57.)  She has taken
numerous 10-week long classes, including classes parenting, emotional regulation, personal
learning, and technology.  (R., p.58.)  Ms. McMurtry has also worked at the commissary unit,
tracking all of the commissary orders for Idaho prisons.  (R., p.58.)  She worked Monday
through Thursday, remaining on-call every-other Friday, and she was paid $1.35 per hour.
(R., pp.58, 88.)  Ms. McMurtry attends weekly Bible study and she crochets hats and blankets for
the homeless.  (R., p.58.)
Ms. McMurtry has prepared herself for re-entry into the community.  As stated in her
Rule 35 motion, her parole plan is to surround herself with positive, sober people; she was
accepted into Rising Sun sober living housing and can also live with her mother.  (R., pp.58, 89.)
She will have a job with Simplot, and she will return to treatment with Ashwood Recovery and
continue participating in AA meetings.  (R., pp.58, 60.)  For the longer term, she plans to start a
business providing horses with electromagnetic therapeutic treatment (PEMF); she plans to
enroll in the specialized school and had begun saving toward the purchase of the PEMF machine.
(PSI, p.188.)
Ms. McMurtry has accepted responsibility for her action, which is also a fact relevant to
her sentence.  Ms. McMurtry entered her guilty plea without any benefit of a plea bargain.
(R., pp.18, 22-36; PSI, p.176.)  She apologized to the court, the prosecutor and her family.
(Tr., p.26, Ls.12-14.)  In her comments to the sentencing court, she stated, “I think about my
actions daily and I take full responsibility and am doing everything I can to make sure this never
8
happens again and to build a strong foundation for recovery.”  (PSI, p.188.)  At her sentencing
hearing, she admitted, “I’m an alcoholic and I know that I can’t drink now.  Not even one.”
(Tr., p.28, Ls.1-4.)
Ultimately, Ms. McMurtry acknowledges her criminal conduct in this case, her DUI
history, and her previous relapses with alcohol abuse.  However, she submits that underlying her
conduct are two previously-unaddressed mental health issues:  abandonment by her father and
alcohol addiction.  Ms. McMurtry needs treatment, not a lengthy period of incarceration.  Society
is better with Ms. McMurtry in it.  She submits that, in light of and society’s interest in having
her back in the community and in treatment, along with all of the other relevant facts of her case,
the three-year fixed portion of her sentence is excessive, and objectively unreasonable,
representing an abuse of discretion.  The district court’s order denying her motion for reduction
of the fixed portion of her sentence from three years, to two, should therefore be reversed, her
sentence should be vacated, and her case should be remanded for resentencing.
CONCLUSION
Ms. McMurtry respectfully requests that this Court vacate her sentence, reverse the
district court’s order denying her motion for reduction of her sentence, and remand her case with
instructions that the district court reduce the fixed portion of her sentence.
DATED this 17th day of March, 2021.
/s/ Kimberly A. Coster
KIMBERLY A. COSTER
Deputy State Appellate Public Defender
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 17th 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
KAC/eas


State v. McMurty Appellant\u27s Brief Dckt. 48333

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State v. Watson Respondent\u27s Brief Dckt. 48350

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State v. Martin Appellant's Reply Brief Dckt. 48397 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48397-2020
)
v. ) NEZ PERCE COUNTY
) NO. CR35-19-6125
LAYNE CURTIS MARTIN, )
) REPLY BRIEF
Defendant-Appellant. )
______________________________)
________________________
REPLY BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE SECOND JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF NEZ PERCE
________________________
HONORABLE JAY P. GASKILL
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
BEN P. MCGREEVY Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
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
ATTORNEYS FOR ATTORNEY FOR
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT
Electronically Filed
8/23/2021 10:47 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ........................................................................................... ii
STATEMENT OF THE CASE ....................................................................................... 1
Nature of the Case ............................................................................................... 1
Statement of the Facts and
Course of Proceedings ......................................................................................... 1
ISSUES PRESENTED ON APPEAL ................................................................................
ARGUMENT .................................................................................................................. 4
 The District Court Erred When It Denied Mr. Martin’s Requests To
 Suppress The Evidence Found As A Result Of The Officers’ Warrantless
 Seizure And Search, Because The Plain View Doctrine And The
 Automobile Exception Did Not Apply ....................................................................... 4
A. Introduction  ..................................................................................................... 4
B. The Plain View Doctrine Did Not Apply To Justify The Officers’
  Warrantless Seizure Of The Items They Observed In The Backseat
  Of Mr. Martin’s Vehicle, Because It Was Not Immediately Apparent
  To The Officers That The Items Were Evidence Of A Crime ............................... 4
C. The Automobile Exception Did Not Apply To Justify The Warrantless
Search Of Mr. Martin’s Vehicle, Because The Officers Did Not Have
Probable Cause To Believe That The Vehicle Contained Contraband
Or Evidence Of A Crime ..................................................................................... 8
CONCLUSION ............................................................................................................... 9
CERTIFICATE OF SERVICE ...................................................................................... 10
ii
TABLE OF AUTHORITIES
Cases
Baldwin v. State, 145 Idaho 148 (2008) ................................................................................... 4, 8
Halen v. State, 136 Idaho 829 (2002) ..........................................................................................9
State v. Bishop, 146 Idaho 804 (2009) .........................................................................................9
State v. Buti, 131 Idaho 793 (1998) .............................................................................................8
State v. Ramirez, 121 Idaho 319 (Ct. App. 1991) ................................................................. 4, 5, 7
Texas v. Brown, 460 U.S. 730 (1983) ...................................................................................... 4, 8
1
STATEMENT OF THE CASE
Nature of the Case
In this appeal, Layne Curtis Martin asserts that the district court erred when it denied his
requests to suppress the evidence found as a result of the officers’ warrantless search of his
vehicle, and warrantless seizure of the items inside.  The plain view doctrine and the automobile
exception to the warrant requirement did not apply to justify the officers’ actions.
The State, in its Respondent’s Brief, argues that Mr. Martin has not shown that the
district court erred when it denied his motion to suppress, because the search of the vehicle and
seizure of the alleged dabs kit were valid under the plain view and automobile exceptions to the
Fourth Amendment.  (See Resp. Br., pp.14-25.)  This Reply Brief is necessary to address certain
of the State’s arguments.
Statement of the Facts and Course of Proceedings
Mr. Martin articulated the relevant facts and proceedings in the Appellant’s Brief. They
are not repeated here, but are incorporated by reference.
As a point of information, the State writes in its statement of the facts that, well into the
search of the vehicle, “Officer Macuk picked up and examined what appears to be a medical
bracelet that was sitting in the dabs kit.  (Ex. A, 33:00-33:10; see also State’s Ex. 6.).”  (Resp.
Br., p.8.)  The State then writes, “Officer Moyle said: ‘Guy he said he took to the hospital,’
presumably referring to [Mr.] Martin’s earlier comment that he had taken a friend named Caleb
Birch to the hospital that day.  (Ex. A, ~33:09, 24:20.)”  (Resp. Br., pp.8-9.)
However, Mr. Martin actually stated in that earlier comment, “I was talking to my
roommate, ’kay?  About my buddy that he just brought to the hospital, which is Caleb Bircher,
2
’kay?  The dude that you asked about.  My buddy, my roommate, Robert Anderson, brought
Caleb to the hospital just now.”  (Ex. A, 24:19-24:30.)
3
ISSUE
Did the district court err when it denied Mr. Martin’s requests to suppress the evidence found as
a result of the officers’ warrantless seizure of the items inside his vehicle and warrantless search
of his vehicle, because the plain view doctrine and the automobile exception did not apply?
4
ARGUMENT
The District Court Erred When It Denied Mr. Martin’s Requests To Suppress The Evidence
Found As A Result Of The Officers’ Warrantless Seizure And Search, Because The Plain View
Doctrine And The Automobile Exception Did Not Apply
A. Introduction
Mr. Martin asserts the district court erred when it denied his requests to suppress the
evidence found as a result of the officers’ warrantless seizure of the items observed inside his
vehicle and warrantless search of his vehicle, because the plain view doctrine and the automobile
exception did not apply.  Thus, the district court should have granted Mr. Martin’s motion to
suppress and his motion for reconsideration.
B. The Plain View Doctrine Did Not Apply To Justify The Officers’ Warrantless Seizure Of
The Items They Observed In The Backseat Of Mr. Martin’s Vehicle, Because It Was Not
Immediately Apparent To The Officers That The Items Were Evidence Of A Crime
The plain view doctrine did not apply to justify the officers’ warrantless seizure of the
items they observed in the backseat of Mr. Martin’s vehicle, because the officers did not have
probable cause to believe the items were associated with criminal activity, and therefore it was
not immediately apparent to the officers that the items were evidence of a crime. See Texas v.
Brown, 460 U.S. 730, 742 (1983); Baldwin v. State, 145 Idaho 148, 155 (2008).
The State argues that the nature of the items as drug paraphernalia was immediately
apparent to the officers, based on the officers’ testimony that they knew from their training and
experience that the items were used to smoke or inhale marijuana.  (See Resp. Br., p.21.)  The
State contends, “just as in [State v. Ramirez, 121 Idaho 319 (Ct. App. 1991)], that evidence is
sufficient to demonstrate that Officer Moyle had probable cause to believe the items were drug
paraphernalia.”  (Resp. Br., p.22.)  However, this case is distinguishable from Ramirez.
5
In Ramirez, an officer saw a spoon, with what appeared to be a dark, tarry residue in its
bowl, inside a car that the defendant had occupied. See Ramirez, 121 Idaho at 321.  The officer
“opened the vehicle door and took the spoon, believing it had been used to prepare heroin.” Id.
After the State charged the defendant with felony possession of a controlled substance, the
defendant filed a motion to suppress the spoon as evidence, which the district court denied. Id.
On appeal, the Idaho Court of Appeals held that the officer’s conduct in approaching and looking
inside the vehicle did not implicate the Fourth Amendment. Id. at 322.
Turning to the officer’s intrusion into the vehicle and seizure of the spoon, the Ramirez
Court held they were constitutionally permissible. See id. at 322-23.  The Court determined
whether the officer reasonably could have concluded that the item he saw inside the vehicle was
contraband or evidence of a crime, based on the following facts:
The record shows that [the officer] first observed the cigarette lighter lying on the
floorboard of the passenger’s side of the vehicle.  He then saw the spoon, lying
face up on the driver’s seat.  In the bowl of the spoon was a black, tarry substance
resembling heroin.  [The officer] inferred that the lighter was used to heat the
heroin in the spoon.  We also note that [the officer] observed these items while in
the parking lot of a place of reported drug activity.  [The officer] further testified
that he knew what the item was “from experience.”
Id. at 323.
The defendant in Ramirez asserted that the State “failed to sufficiently detail the level of
experience drawn upon by [the officer] in associating the spoon and residue with drug use,” and
without evidence of that background, the district court “could not determine whether the officer’s
conclusions were reasonable.” Id.  The Ramirez Court disagreed, holding, “Although the record
of the officer’s experience is brief, it does establish that [the officer] had made a previous arrest
for possession of heroin and also that he knew what the substance looked like.” Id.  The Court
further held, “The record also shows he was aware of the practice, common among heroin users,
6
of melting the substance in an ordinary spoon prior to injection.” Id.  The Ramirez Court
concluded, “this showing demonstrates a level of experience adequate to support the officer’s
reasonable belief that the spoon he observed was drug paraphernalia.” Id.
This case is distinguishable from Ramirez, because the officers here did not show a level
of experience adequate to support a reasonable belief that the items seen in Mr. Martin’s car
were evidence of a crime.  First, the officers’ statements during the search indicate they did not
recognize the observed items as evidence of a crime until after they seized the items.  (See Ex. A,
33:00-33:25.)1  For instance, when Officer Moyle picked up the package containing the alleged
dabs kit, he asked, “What is all this stuff?  What is this?”  (Ex. A, 33:00-33:07.)
Second, while the officer in Ramirez knew of the practice of melting heroin in a spoon
before injection, Officer Moyle did not know how the small metal piece found among the items
here was used, and he testified that he had not personally seen anybody use the crescent moon-
shaped piece of glass.  (See 1/8/20 Tr., p.58, Ls.22-25, p.59, L.14 – p.60, L.7.)  He could not
name the items in the alleged dabs kit, and he did not know how to use most of the items.  (See
1/8/20 Tr., p.58, L.15 – p.60, L.7.)  Thus, contrary to the State’s argument, Officer Moyle did not
explain “how such kits are used to smoke marijuana.”  (See Resp. Br., p.22.)  Officer Macuk also
testified that he did not know how the glass shapes among the items were used.  (See 1/8/20
Tr., p.26, L.21 – p.27, L.1.)
1 Mr. Martin disputes the State’s contention that one of those statements, Officer Moyle’s
statement, “It’s new,” is difficult to hear.  (See Resp. Br., p.9 n.3.)  The State argues that “the
statement could also be ‘his name,’ which would be consistent with the officers’ discussion of
the medical bracelet and may refer to Caleb Birch, whom [Mr.] Martin mentioned taking to the
hospital.”  (Resp. Br., p.9 n.3.)  The video recording shows that Mr. Martin actually mentioned
that his roommate took Caleb Bircher to the hospital.  (See Ex. A, 24:19-24:30.)  Mr. Martin
submits that Officer Moyle stated, while looking at the green and yellow silicone container
among the items, “It’s new.  It’s enough for us.”  (Ex. A, 33:15-33:22; see R., p.228.)
7
Thus, unlike the officer in Ramirez, the officers here did not show a level of experience
adequate to support a reasonable belief that the items seen in Mr. Martin’s car were evidence of a
crime. See Ramirez, 121 Idaho at 323.  This case would be more comparable with Ramirez if the
officer in Ramirez had been unable to name the spoon or explain how it was used to prepare
heroin for injection.
The State also contends that “the video corroborates the officers’ testimony that they
recognized the items as drug paraphernalia prior to searching the vehicle,” because Officer
Moyle “began his contact with [Mr.] Martin by confronting [Mr.] Martin about those items—‘the
dabs’ and ‘[t]he little circular container and the glass bowl’ in [Mr.] Martin’s vehicle.”  (Resp.
Br., p.22 (quoting Ex. A, 00:30-00:45).)  The State argues, “Officer Moyle continued to refer to
the items as a dabs kit and drug paraphernalia throughout his interaction with [Mr.] Martin prior
to searching the vehicle or seizing the items.”  (Resp. Br., pp.22-23 (citing Ex. A., ~00:45, 01:22,
01:34, 03:39).)  But as seen above, when Officer Moyle picked up the package containing the
alleged dabs kit, over thirty minutes into the encounter, he asked, “What is all this stuff?  What is
this?”  (Ex. A, 33:00-33:07.)  Officer Moyle’s question indicates that, despite his earlier
statements, he did not recognize the observed items as evidence of a crime until after the officers
seized the items.
The State argues that at the time Officer Moyle made that statement, “The video shows
Officer Macuk pick up and examine what appears to be a medical bracelet that was sitting in the
dabs kit; he does not appear to pick up or examine any other items from the dabs kit.”  (Resp.
Br., p.23 (citing Ex. A, 33:00-33:10; State’s Ex. 6).)  However, there was no testimony from the
officers or any other evidence that the item Officer Macuk picked up was a medical bracelet.
(See generally 1/8/20 Tr.)  Additionally, as opposed to the State’s characterization of the facts,
8
Mr. Martin actually commented that his roommate took Caleb Bircher to the hospital.  (See Ex.
A, 24:19-24:30.)  Thus, rather than depict the officers examining a medical bracelet, the video
recording shows Officer Moyle looking at the green and yellow silicone container among the
items, and stating, “It’s new.  It’s enough for us.”  (Ex. A, 33:15-33:22; see R., p.228.)
As shown by the video recording of the encounter, the officers’ statements during the
search indicate they did not recognize what the items were before seizing them, much less
believe they were evidence of a crime.  Additionally, the officers’ testimony to the contrary was
not credible.  Under these circumstances, the facts available to the officers would not warrant a
man of reasonable caution in the belief that the items they observed in the vehicle were evidence
of a crime. See Texas v. Brown, 460 U.S. at 742.  Thus, the officers did not have probable cause
to believe that the items were associated with criminal activity. See id.; Baldwin, 145 Idaho at
155-56.  It was therefore not immediately apparent to the officers that the items may be evidence
of crime. See Baldwin, 145 Idaho at 155.  Application of the plain view doctrine does not justify
the officers’ warrantless seizure of the items. See id.
C. The Automobile Exception Did Not Apply To Justify The Warrantless Search Of
Mr. Martin’s Vehicle, Because The Officers Did Not Have Probable Cause To Believe
That The Vehicle Contained Contraband Or Evidence Of A Crime
The automobile exception to the warrant requirement does not justify the officers’
warrantless search of Mr. Martin’s vehicle, because the officers did not have probable cause to
believe that the vehicle contained contraband or evidence of a crime. See State v. Buti, 131
Idaho 793, 800 (1998).
The State argues that, because the officers immediately recognized the items to be drug
paraphernalia and they therefore had probable cause to believe the vehicle contained contraband
or evidence of a crime, the warrantless search of the vehicle was permissible under the
9
automobile exception.  (See, e.g., Resp. Br., p.25.)  Contrary to the State’s argument, for the
reasons discussed above and in the Appellant’s Brief (see App. Br., pp.25-26), and incorporated
herein, the officers did not have probable cause to believe that Mr. Martin’s vehicle contained
contraband or evidence of a crime.
Despite the State’s arguments, the plain view doctrine does not justify the officers’
warrantless seizure of the items inside Mr. Martin’s SUV, and the automobile exception does not
justify their warrantless search of the vehicle.  Thus, the State has not met its burden of showing
that a recognized exception to the warrant requirement is applicable here. See Halen v. State,
136 Idaho 829, 833 (2002). The district court erred when it denied Mr. Martin’s requests to
suppress the evidence found as a result of the officers’ warrantless seizure of the items observed
inside his vehicle, and the warrantless search of his vehicle.  The evidence found as a result of
the illegal seizure and search should be suppressed, either as evidence obtained directly from the
illegal government actions, or as fruit of the poisonous tree in the case of the evidence found in
the later search of the hotel room. See State v. Bishop, 146 Idaho 804, 810-11 (2009).
CONCLUSION
For the above reasons, as well as the reasons contained in the Appellant’s Brief,
Mr. Martin respectfully requests that this Court vacate his judgment of conviction, the district
court’s order denying his motion to suppress, and the order denying his motion for
reconsideration.
DATED this 23rd day of August, 2021.
/s/ Ben P. McGreevy
BEN P. MCGREEVY
Deputy State Appellate Public Defender
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S REPLY BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
BPM/eas


State v. Martin Appellant\u27s Reply Brief Dckt. 48397

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State v. Villalobos Respondent\u27s Brief Dckt. 48406

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State v. Alvarez Appellant\u27s Brief Dckt. 48415

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State v. Alvarez Respondent's Brief Dckt. 48415 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
JOSE VALENTINO ALVAREZ 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48415-2020 
 
Ada County 
Case No. CR01-19-38808 
 
 
RESPONDENT’S BRIEF 
 
 Has Jose Valentino Alvarez failed to show that the district court abused its sentencing 
discretion when it imposed a sentence of nine years, with four years fixed upon his conviction for 
two counts intimidating a witness? 
 
ARGUMENT 
Alvarez Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 During the course of their two-year relationship, Jose Valentino Alvarez abused Moriah 
Shipp, including an incident in which Moriah fled her home, contacted police, and received 
hospital care for bruising around her head, neck, shoulder, and thigh, a laceration on her forehead, 
Electronically Filed
9/14/2021 1:27 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
 
and a ruptured ear canal.  (PSI, pp. 94-96, 104-106.)  The state charged Alvarez with attempted 
strangulation, aggravated battery, and two counts of battery. (R., pp. 77-78.).  
Officers were dispatched a month later when Moriah contacted 911 to report Alvarez 
presently banging on, and attempting to open, her apartment door.  (PSI, pp. 113-119.)  Moriah 
reported Alvarez had stalked her at work, called and texted her cell phone, and texted her via 
Snapchat.  (PSI, pp. 113-119.)  The officer viewed a Snapchat conversation in which Moriah stated 
she would not lie during Alvarez’s upcoming court date regarding his assault upon her.  Alvarez 
texted, “Look out for you. I won’t forget it.”  (PSI, p. 116.)  During the interview with the officer, 
Moriah recounted a previously unreported attack in which Alvarez repeatedly punched her in the 
stomach, and later – while holding a rifle - threatened to rape and kill her.  (PSI pp. 8-10.) 
The state charged Alvarez with two counts of intimidating a witness, two counts of 
violation of a no contact order, and battery in an amended information.  (R., pp. 108-110.)  Alvarez 
pleaded guilty to the charges in the amended information. (R., p. 132; Tr., p. 6, L. 23 – p. 9, L. 9; 
p. 22, L. 3 – p. 28, L. 24.)  The district court imposed consecutive sentences of four years fixed for 
the first count of witness intimidation and five years indeterminate for the second count of witness 
intimidation, and time served for the remaining charges.  (R., pp. 133-134.) 
 Alvarez filed a timely notice of appeal.  (R., pp. 137-139.)  He also filed a motion for 
reduction of his sentences.  (R., pp. 175-84; Aug. pp. 10-12.)  The district court denied the motion 
(Supp. Tr., p. 25, L. 4 – p. 30, L. 1.) 
 Alvarez challenges the district court’s decision to sentence him to an aggregate nine years 
with five years determinate and challenges the district court’s decision to deny his Rule 35 motion.  
(Appellant’s brief, pp. 4-12.)  Alvarez has failed to show an abuse of discretion. 
 
  
3 
 
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the burden 
of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).   
 “A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, 
addressed to the sound discretion of the court.”  State v. Bakke, 481 P.3d 1197, 1203 (Idaho Ct. 
App. 2020), review denied (Jan. 20, 2021).  The denial of a Rule 35 motion for reduction of 
sentence is reviewed for an abuse of discretion.  State v. Dabney, 159 Idaho 790, 798, 367 P.3d 
185, 193 (2016). 
In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
C. Alvarez Has Shown No Abuse of the Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
4 
 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)).  The district 
court’s factual finding and reasoning for its sentence show no abuse of discretion.   
The district court specifically considered the applicable legal standards.  (Tr., p. 79, Ls. 13-
23.)  It considered the mitigating facts, including that Alvarez had a low LSI score and clean 
criminal record prior to these incidents (Tr., p. 80, Ls. 7-11); favorable letters of support (Tr., p. 
80, Ls. 12-17); and Alvarez’s explanations for his conduct and acceptance or responsibility (Tr., 
p. 80, L. 18 – p. 81, L. 5).  It then “weighed all of these positive things” against things it found 
“troubling,” including Alvarez’s “conduct in the jail” and his refusal to obey the no contact order.  
(Tr., p. 81, L. 19 – p. 83, L. 7.)  Alvarez’s refusal to follow the jail rules and no contact order 
indicated that probation would not adequately protect the victim, Moriah Shipp.  (Tr., p. 83, L. 8 
– p. 85, L. 11.)  The district court specifically weighed the mitigating and aggravating factors 
before imposing sentence.  (Tr., p. 85, L. 12 – p. 87, L. 11; p. 89, L. 19 – p. 90, L. 22.)  
 The record supports the district court’s factual findings and conclusion that Alvarez was a 
continuing risk to harm the victim or another domestic partner.  In his domestic violence evaluation 
Alvarez scored a “high chance of re-offending in the future,” was in the “high-risk range for 
5 
 
domestic violence,” and a “problem risk” on the assessment tools.  (PSI, pp. 3-4, 10.)  “The 
Intimate Justice scale show[ed] a severe potential for violence towards his partner.” (PSI, p. 10.)  
During the evaluation, Alvarez attempted to spread blame for the assaults to Moriah’s behavior 
(PSI, pp. 5-6, 10 (Alvarez “is not an accurate historian of his abusive behavior”).)  In the stalking 
assessment and management evaluation, Alvarez showed a “severe potential for violence towards 
his partner,” and fell into the “rejected” type of stalker which is the “most common and dangerous 
type.”  (PSI, pp. 14-15.)  The evaluator wrote Alvarez “was unlikely to discontinue attempting to 
engage” Moriah and “was not decreasing in his behaviors towards [her] until incarceration.” (PSI, 
p. 16.)   
Moriah recounted a two year history of emotional, mental, and physical abuse. (PSI, pp. 
30-32.)  She wrote that she lives “in a constant state of fear” and “could not live a normal life” 
because Alvarez had “tried to take [her] life more than once” and had not obeyed prior no-contact 
orders.  (PSI, p. 31.)  She was fearful of what would happen to her after the conclusion of the 
criminal proceedings.  (PSI, p. 31.)   
While in custody at the Ada County Jail, Alvarez, used the Telmate “GettingOut Visits” 
app to send a request directly to Moriah, requesting direct communication and enabling video chat. 
(PSI, pp. 173-174, 177-178.)  Moriah contacted police and filed a report. (PSI, pp. 173-178.)  
Although Alvarez denied knowing he was sending Moriah an invitation to download a video 
communication app (Tr., p. 60, L. 21 – p. 61, L. 7), the district court found that Alvarez understood 
“how the system worked” (Tr. p. 84, L. 14 – p. 85, L. 11).  
The district court recognized its first obligation to protect society.  (Tr. p. 79, L. 13-25; p. 
81, L. 9-18; p. 83, L. 8-21; p. 89, Ls. 4-11.)  It found Alvarez is “capable of committing acts of 
physical, emotional, and verbal abuse, that [Alvarez is a] high risk for domestic violence, that 
6 
 
[Alvarez is a] high risk for stalking behaviors.  And not just a significant risk related to the 
commission of future crimes, but to commit future offenses towards [Moriah], that [Alvarez is] a 
significant risk for crimes of violence and harassment.” (09/18/20 Tr. p. 86, L. 1-10.)  The district 
court’s sentence is reasonable and not an abuse of discretion. 
In arguing otherwise, Alvarez contends he should have been given “a rider or … probation 
in light of the mitigating factors, including his young age, lack of significant criminal history, 
troubled childhood, positive work history, and community support.”  (Appellant’s brief, p. 5.)  As 
set forth above, however, the district court did consider the mitigating factors, but concluded they 
were outweighed by the need to protect society, particularly the victim in this case and any future 
domestic partners, from a man who was clearly a danger to them.  Alvarez has failed to show an 
abuse of discretion. 
 The district court also properly denied the Rule 35 motion.  “In presenting a Rule 35 
motion, the defendant must show that the sentence is excessive in light of new or additional 
information subsequently provided to the district court in support of the motion.”  State v. Yang, 
167 Idaho 944, 949, 477 P.3d 998, 1003 (Ct. App. 2020).  “In conducting our review of the grant 
or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for 
determining the reasonableness of the original sentence.”  State v. Del Critchfield, 167 Idaho 650, 
654, 474 P.3d 1247, 1251 (Ct. App. 2020). 
 The district court applied the correct legal standards to the motion.  (Supp. Tr., p. 18, L. 10 
– p. 20, L. 9.)  It found that the correct legal standards had been applied at the sentencing and 
reviewed the balancing of mitigating and aggravating factors.  (Supp. Tr., p. 21, L. 1 – p. 24, L. 
20.)  The court found it had not exceeded its authority.  (Supp. Tr., p. 24, L. 21 – p. 25, L. 3.)  The 
district court then conclude that the information provided in the Rule 35 motion did not indicate a 
7 
 
reduction of sentence was appropriate.  (Supp. Tr., p. 25, L. 4 – p. 30, L. 1.)  Because the sentence 
was reasonable when imposed and was not shown to be unreasonable by new information, the 
district court did not abuse its discretion.  
 Alvarez contends the district court erred by denying his Rule 35 motion in light of his 
potential for brain development and other factors.  (Appellant’s brief, pp. 9-12).  The district court 
considered the information presented in the motion, but concluded it was either not new 
information or did not change the balancing of sentencing factors.  (Supp. Tr., p. p. 25, L. 4 – p. 
30, L. 1.)  Alvarez has failed to show the district court abused its discretion.   
 
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
  
DATED this 14th of September, 2021 
 
 
      __/s/ Kenneth K. Jorgensen_________________ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
  
8 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 14th day of September, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
JACOB L. WESTERFIELD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                        __/s/ Kenneth K. Jorgensen_________________ 
                                                                        KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Alvarez Respondent\u27s Brief Dckt. 48415

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State v. Ford Appellant's Brief Dckt. 48420 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48420-2020
)
v. ) ADA COUNTY NO. CR01-19-41056
)
CODY EUGENE FORD, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Cody Ford pled guilty to battery on a correctional officer. The district court imposed a
sentence of five years, with one and a half years fixed, to run consecutively to any other
sentences he is currently serving. On appeal, Mr. Ford argues that the district court abused its
discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
At the time of the instant offense, Mr. Ford was serving time at the Idaho State
Correctional Center for a previous conviction. (PSI, pp.56, 63.) Mr. Ford approached one of the
Electronically Filed
2/11/2021 12:00 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
correctional officers and asked if he was going to write him a Disciplinary Offense Report
(“DOR”) for the prohibited items found during a search of Mr. Ford’s cell. (PSI, pp.56, 63.) The
officer replied that he would have to write him a DOR, and then Mr. Ford punched the officer in
the face. (PSI, pp.56, 63.)
The State filed a complaint against Mr. Ford for battery on a correctional officer in
September 2019. (R., pp.8-9.) After Mr. Ford waived his preliminary hearing, the magistrate
judge bound him over to district court, and he was charged by information with battery on a
correctional officer. (R., pp.38, 42-43.) Mr. Ford entered into a plea agreement with the State and
pled guilty in exchange for the State’s sentencing recommendation of five years, with two years
fixed. (9/8/20 Tr.,1 p.4, Ls.26-22; R., pp.64-74.) At the sentencing hearing in October 2020, the
State recommended that the district court impose a sentence of five years, with two years fixed,
to run consecutive to any other sentences. (10/21/20 Tr., p.10, Ls.7-14.) Defense counsel
requested that the district court impose one year fixed. (10/21/20 Tr., p.11, Ls.23-25.) The
district court sentenced Mr. Ford to five years, with one and a half years fixed, to run consecutive
to any other sentences that he is currently serving. (10/21/20 Tr., p.23, L.21 – p.24, L.9;
R., pp.77-80.) Mr. Ford timely appealed from the district court’s judgment of conviction.
(R., pp.82-84.)
ISSUE
Did the district court abuse its discretion by imposing upon Mr. Ford an excessive sentence?
1 The Reporter’s Transcript consists of two separately-paginated transcripts in one electronic
document. Each will be cited with reference to its internal pagination. The first transcript, cited
as “9/8/20 Tr.,” contains the change of plea hearing, held on September 8, 2020 (pages one to
eight of the overall document). The second transcript, cited as “10/21/20 Tr.,” contains the
sentencing hearing held on October 21, 2020 (pages nine to nineteen of the overall document).
3
ARGUMENT
The District Court Abused Its Discretion By Imposing Upon Mr. Ford An Excessive Sentence
Mr. Ford asserts that, given any view of the facts, his sentence of five years, with
one and a half years fixed, is excessive. Where a defendant contends that the sentencing court
imposed an excessively harsh sentence, the appellate court will conduct an independent review
of the record giving consideration to the nature of the offense, the character of the offender, and
the protection of the public interest. See State v. Reinke, 103 Idaho 771 (Ct. App. 1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)). Mr. Ford does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, he must show that in light of the governing
criteria, the sentence was excessive considering any view of the facts. Id.  The governing criteria
or objectives of criminal punishment are: (1) protection of society; (2) deterrence of the
individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or
retribution for wrongdoing. Id.
Appellate courts use a four-part test for determining whether a district court abused its
discretion: Whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).
Here, Mr. Ford asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, he contends the district court
4
should have sentenced him to a lesser term of imprisonment, in light of the mitigating factors,
including his troubled childhood, substance abuse issues and their longstanding impact on his
life, amenability to treatment, and family support.
Mr. Ford’s troubled childhood stands in favor of mitigation. The Court of Appeals has
recognized that a defendant’s “extremely troubled childhood is a factor that bears consideration
at sentencing.” State v. Williams, 135 Idaho 618, 620 (Ct. App. 2001). In this case, Mr. Ford’s
mother had him when she was  and he was primarily raised by his grandparents.
(PSI, p.16.) His parents split up before he was born, and he has had little contact with his father
throughout his life. (PSI, p.16.) Mr. Ford reported in his presentence investigation report (“PSI”)
that his mother was always out partying when he was growing up, and she was likely smoking
methamphetamine and drinking alcohol during her pregnancy with him. (PSI, p.16.) He stated
his mother was “more like a friend than a parent,” and would buy him and his friends alcohol,
and showed him how to use methamphetamine. (PSI, pp.16-17.) When contacted by the
presentence investigator, Mr. Ford’s father acknowledged his own addiction problems, and stated
that he is now clean, and he got away from “meth” and “so-called friends” about fifteen years
ago. (PSI, p.5.) Mr. Ford explained that he never got in trouble with his grandparents and was
allowed to do whatever he wanted. (PSI, pp.16-17.) He said that even when he skipped and then
dropped out of school, the worst his grandparents did was express their disappointment in him.
(PSI, p.17.) His mother would even reward him for bad behavior – buying him ice cream or
material items when he would get into trouble at school or with the law. (PSI, p.17.)
 Mr. Ford had his first run-in with the law at . (PSI, p.14.)
He began regularly using drugs and alcohol at . (PSI, p.21.) The impact of substance
abuse on the defendant’s criminal conduct is “a proper consideration in mitigation of punishment
5
upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981). Mr. Ford reported that his
mother first showed him how to use methamphetamine when he was 
(PSI, pp.16-17, 21.) He eventually dropped out of school after the eighth grade because he “got
into drugs.” (PSI, p.19.)
Despite being in prison, Mr. Ford reported that he still used drugs and alcohol on a
regular basis. (PSI, pp.4, 21, 36-37, 39-40.) He has acknowledged that his involvement with
drugs has caused problems in his life and stated: “Problems with cops, and cause my family
hurt/pain.” (PSI, p.21.) He further acknowledged that he has difficulty maintaining full time or
steady employment because his drug use has gotten in the way. (PSI, p.20.) Idaho courts have
previously recognized that substance abuse and a desire for treatment should be considered as a
mitigating factor by the district court when that court imposes sentence. State v. Nice, 103 Idaho
89 (1982). Mr. Ford indicated he wants to stop using drugs because “it has started [taking] over,”
and he feels like inpatient treatment would help him remain drug free. (PSI, p.21.) He also stated
that he thinks he would benefit from a mental health evaluation and/or counseling to assist him
with “bottled up” emotions, and due to losing his mother and grandfather. (PSI, p.21.)
Mr. Ford has owned up to his behavior and taken responsibility for his actions. After
being charged in this case, Mr. Ford went to the Parole Board and stated that for the first time, he
really cared about what happened. (10/21/20 Tr., p.13, Ls.11-20.). He noted that he put
significant effort and time into completing the presentence investigation packet, and tried to be
more open and honest than he has been in the past. (10/21/20 Tr., p.13, Ls.11-20; PSI, p.4.)
When asked by the Parole Board if he deserved to be released, he said, “Well jeez, you know,
based upon the conduct, the things that I have just done recently, maybe I don’t.” (10/21/20
Tr., p.14, Ls.2-12.). His trial counsel noted that he took responsibility for everything and
6
expressed that he felt bad about what he did. (10/21/20 Tr., p.16, Ls.11-21.) Even the officer that
Mr. Ford punched stated that he had no previous behavior issues from Mr. Ford, and their
interactions had always been cordial and positive. (PSI, p.2.) In his most recent PSI, the
presentence investigator noted that Mr. Ford was respectful and articulate. (PSI, p.6.) He spoke
about people outside of prison that he cares about, and his desire to change. (PSI, p.6.) In an
effort to change his ways, Mr. Ford has distanced himself from the Aryan Knights, stating that
his moment of clarity came when he was ordered to beat up someone he had known all his life
and cared about, and he decided he could no longer follow orders. (PSI, p.4.) Upon his release,
he stated that he plans to start going to narcotics anonymous meetings and begin treatment at
Tamarack in Sandpoint. (PSI, p.5.)
Notwithstanding his severe drug addiction, Mr. Ford continues to have the support of his
family. The Idaho Supreme Court noted in State v. Shideler, 103 Idaho 593, 594 (1982), that
family and friend support were factors that should be considered in the court’s decision as to
what is an appropriate sentence. Id. He stated that he is close to his grandmother and calls her on
a weekly basis. (PSI, p.5.) Upon his release, he plans to live with his grandmother and aunt, and
help take care of his grandmother. (PSI, p.5.) Although he has had no contact with Mr. Ford, his
father told the presentence investigator that he hopes to one day know his oldest son, and he is
open to Mr. Ford calling him. (PSI, p.5.)
Despite Mr. Ford’s troubled childhood and significant drug addiction, he has
demonstrated a willingness to try to change his behavior. Mr. Ford has acknowledged that his
drug addiction has caused problems in his life, and he has taken responsibility for his actions. He
indicated that he wants to remain sober and get treatment for his addiction. In an effort to
7
change, Mr. Ford decided to distance himself from his affiliation with the Aryan Knights. He
also has a place to live upon release, and still maintains a positive relationship with his family.
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Mr. Ford submits that the district court did not exercise reason, and thus
abused its discretion, by sentencing him to five years, with one and a half years fixed, to run
consecutively to any other sentences he is currently serving.
CONCLUSION
Mr. Ford respectfully requests that this Court reduce his sentence as it deems appropriate.
Alternatively, he requests that his case be remanded to the district court for a new sentencing
hearing.
DATED this 11th day of February, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11th 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/ Kylie M. Fourtner
KYLIE M. FOURTNER
Administrative Assistant
KAH/kmf


State v. Ford Appellant\u27s Brief Dckt. 48420

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Foster v. State Appellant's Reply Brief Dckt. 48422 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
ADAM DEACON FOSTER, )
) NO. 48422-2020
Petitioner-Appellant, )
v. ) BONNER COUNTY NO. CV09-20-784
)
STATE OF IDAHO, ) APPELLANT’S
) REPLY BRIEF
Respondent. )
______________________________)
________________________
REPLY BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE FIRST JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF BONNER
________________________
HONORABLE BARBARA BUCHANAN
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
BEN P. MCGREEVY Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
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
ATTORNEYS FOR ATTORNEY FOR
PETITIONER-APPELLANT RESPONDENT
Electronically Filed
8/12/2021 12:06 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ........................................................................................... ii
STATEMENT OF THE CASE ....................................................................................... 1
Nature of the Case ............................................................................................... 1
Statement of the Facts and
Course of Proceedings ......................................................................................... 1
ISSUE PRESENTED ON APPEAL ................................................................................ 2
ARGUMENT .................................................................................................................. 3
 The Neimeyer Decision Would Control On Whether Mr. Foster’s Issue
 Has Been Preserved For Appeal ................................................................................ 3
CONCLUSION ............................................................................................................... 5
CERTIFICATE OF SERVICE ........................................................................................ 5
ii
TABLE OF AUTHORITIES
Cases
Kolar v. Cassia Cnty., Idaho, 142 Idaho 346 (2005) ....................................................................4
State v. DuValt, 131 Idaho 550 (1998) .........................................................................................3
State v. Gonzalez, 165 Idaho 95 (2019) ................................................................................... 3, 4
State v. Jeske, 164 Idaho 862 (2019)........................................................................................ 3, 4
State v. Neimeyer, No. 48572, 2021 Ida. LEXIS 119 (Idaho June 29, 2021)......................... 1, 4, 5
Rules
Idaho Rule of Evidence 201(c)  ...................................................................................................2
1
STATEMENT OF THE CASE
Nature of the Case
In his Appellant’s Brief, Adam Deacon Foster asserted that the district court, when it
summarily dismissed his petition for post-conviction relief, abused its discretion by sua sponte
taking judicial notice of the entire case file from the underlying case.
In its Respondent’s Brief, the State argues that, because Mr. Foster has not challenged the
district court’s determination that he did not present evidence to show a valid claim, the district
court’s judgment must be upheld on the unchallenged basis.  (See Resp. Br., pp.3-5.)
Alternatively, the State argues that, even if dismissal were considered on the merits, the Court
should affirm because Mr. Foster did not present a viable claim of post-conviction relief.  (See
Resp. Br., pp.3, 5-6.)  The State also contends that Mr. Foster has not shown that the district
court abused its discretion when it took judicial notice of the underlying criminal record, because
his assertion on appeal is not preserved, the district court complied with the rules governing
judicial notice, and any error is harmless.  (See Resp. Br., pp.3, 7-11.)
This Reply Brief is necessary in light of the Idaho Supreme Court’s recent decision in
State v. Neimeyer, No. 48572, 2021 Ida. LEXIS 119 (Idaho June 29, 2021), which held that a
judicial notice issue was not preserved for appeal where the issue and the appellant’s position
regarding that issue were not raised before the district court.  Mr. Foster concedes that Neimeyer
would control on whether his issue has been preserved for appeal.
Statement of the Facts and Course of Proceedings
The statement of the facts and course of proceedings were previously articulated in
Mr. Foster’s Appellant’s Brief.  They need not be repeated in this Reply Brief, but are
incorporated herein by reference thereto.
2
ISSUE
Did the district court abuse its discretion by taking judicial notice of the entire case file from
Mr. Foster’s underlying case, in contravention of the specificity requirement of Idaho Rule of
Evidence 201(c)?
3
ARGUMENT
The Neimeyer Decision Would Control On Whether Mr. Foster’s Issue Has Been Preserved
For Appeal
Mr. Foster asserted that the district court abused its discretion by taking judicial notice of
the entire case file from the underlying case.  (See App. Br., pp.11-23.)
On issue preservation, Mr. Foster asserted that “the issue of whether the district court
abused its discretion by sua sponte taking judicial notice of the entire case file from the
underlying case is preserved for appellate review, even though Mr. Foster did not expressly
object to the district court’s judicial notice.”  (App. Br., p.14.)  He asserted that “the district court
actually decided the question of judicial notice,” and thus, “the issue of whether the district court
abused its discretion by taking judicial notice is preserved under the exception identified by the
Court in [State v. Jeske, 164 Idaho 862 (2019)] and [State v. DuValt, 131 Idaho 550 (1998)].”
(App. Br., p.18 (citing Jeske, 164 Idaho at 868; DuValt, 131 Idaho at 553).)
The State argues that, while “decisions actually made by the district court are reviewable
on appeal . . . . the decision made by the district court was to take judicial notice; it did not
decide whether it had properly identified the specific documents of which it had taken judicial
notice.”  (Resp. Br., p.7.)  The State argues, “Lacking a decision on the adequacy of the
identification of specific documents, the record does not show a reviewable decision by the court
on that issue.”  (Resp. Br., p.7.)
The general rule for issue preservation is that “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.” State v.
Gonzalez, 165 Idaho 95, 99 (2019).  However, the Court has applied an exception to the general
rule “when the issue was argued to or decided by the trial court.” DuValt, 131 Idaho at 553.  The
Court “recognizes a distinction between issues not formally raised below and issues that never
4
‘surfaced’ below.” Jeske, 164 Idaho at 868 (quoting Kolar v. Cassia Cnty., Idaho, 142 Idaho
346, 354 (2005)).
After the filing of the Appellant’s Brief and the Respondent’s Brief in this case, the Idaho
Supreme Court’s decision in State v. Neimeyer, No. 48572, 2021 Ida. LEXIS 119 (Idaho June 29,
2021), became final.  The appellant in Neimeyer asserted on appeal that the State did not prove
the existence of a municipal ordinance used to establish probable cause to help justify a
warrantless search, and that the district court was precluded from taking judicial notice of a
municipal ordinance. See 2021 Ida. LEXIS 119 at *8.  However, the appellant did not raise
those arguments before the district court. See id.  One of the Neimeyer appellant’s arguments
was that “the issue was preserved because the trial court decided the issue.” See id. at *9.
The Neimeyer Court disagreed, “because this issue and Neimeyer’s position on the issue
were not raised below.” Id. at *12.  The Court wrote, “the district court did not have an
opportunity to address Neimeyer’s contention that a district court may not take judicial notice of
a municipal ordinance.” Id.  According to the Neimeyer Court, “the issue was not ‘decided by’
the district court,” because the appellant did not object when the State referenced the municipal
ordinance, “nor did she object when the district court relied on the ordinance in its decision.” Id.
at *13.  “Consequently, the district court never decided the issue of whether a trial court may
take judicial notice of a municipal ordinance or the procedure to be used.” Id.  The Court held,
“because the district court never had an opportunity to address Neimeyer’s argument below, the
issue was not preserved for appeal.” Id. (citing State v. Gonzalez, 165 Idaho at 99).
Mr. Foster concedes that Neimeyer would control on whether his issue has been
preserved for appeal.  Here, Mr. Foster did not expressly object to the district court’s judicial
5
notice.  Thus, based on Neimeyer, the district court did not actually decide whether it had
properly taken judicial notice. See Neimeyer, 2021 Ida. LEXIS 119 at *12-13.
CONCLUSION
For the reasons contained in the Appellant’s Brief, and mindful of the Court’s subsequent
decision in Neimeyer, Mr. Foster respectfully requests that this Court vacate the judgment
dismissing his post-conviction petition, and the district court’s memorandum decision and order
granting the State’s motion for summary disposition, and remand the matter to the district court
for further proceedings.
DATED this 12th day of August, 2021.
/s/ Ben P. McGreevy
BEN P. MCGREEVY
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S REPLY BRIEF, to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
 /s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
BPM/eas


Foster v. State  Appellant\u27s Reply Brief Dckt. 48422

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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
EMILY M. JOYCE
Deputy State Appellate Public Defender
I.S.B. #10410
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NOS. 48433-2020 & 48434-2020
)
v. ) BANNOCK COUNTY NOS.
) CR-2017-3142 & CR03-19-13019
)
JARED R. KUGLER, )
) APPELLANT’S BRIEF
Defendant-Appellant. )
____________________________________)
STATEMENT OF THE CASE
Nature of the Case
Jared Kugler was on probation for possession of a controlled substance when he was
charged with the same offense in a new case. In the older case, the district court revoked
Mr. Kugler’s probation and executed his sentence of six years, with three years determinate. For
the new case, the district court imposed a consecutive sentence of six years, with three years
determinate. After the district court denied Mr. Kugler’s Rule 35 motion, Mr. Kugler filed, pro
se, a “Motion for Rule 33(d)” seeking a commutation of his sentence, and a “Motion to Appeal
Rule 35 Denial.” The district court denied both motions. Mindful that the district court had no
Electronically Filed
8/10/2021 9:17 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
jurisdiction to commute his sentences or to consider his successive Rule 35 motion, Mr. Kugler
contends the district court abused its discretion by denying his motions.
Statement of the Facts and Course of Proceedings
In 2017, Mr. Kugler was at an extremely low point in his life (2017 PSI, p.5), resulting in
a guilty plea to possession of a controlled substance (“2017 case”). (48433 R., p.64.)1 The district
court sentenced him to six years, with three years determinate, and retained jurisdiction. (48433
R., p.87.) After successfully completing a “rider” program, the district court suspended
Mr. Kugler’s sentence and placed him on four years of probation. (48433 R., p.90.)
In 2019, while on probation, Mr. Kugler was charged with possession of a controlled
substance in a new case (“2019 case”). (48433 R., p.102; 48434 R., p.38.) The new charge
resulted in a probation violation allegation in the 2017 case. (48433 R., p.102.) Mr. Kugler
pleaded guilty in the 2019 case (48434 R., pp.75-76), and admitted to violating his probation in
the 2017 case. (48433 R., p.109.) For the 2017 offense, the district court revoked Mr. Kugler’s
probation and executed his sentence. (48433 R., p.118.) For the 2019 offense, the district court
imposed a six-year sentence, with three years determine, to run consecutively to the sentence in
the 2017 case. (48434 R., p.76.)
Mr. Kugler timely filed Rule 35 motions in both cases and requested reductions for both
sentences. (48433 R., pp.121-22; 48434 R., pp.80-81.) The district court denied the motions in
each case. (48433 R., p.125; 48434 R., p.85.)
Twenty-eight days after his first Rule 35 motions were denied, Mr. Kugler filed a pro se
Rule 33(d) motion in each case, requesting the district court commute a portion of each of his
1 There are two Clerk’s Records in this consolidated appeal. References to the Clerk’s Record for
Bannock County case number CR-2017-3142 will be to “48433 R.” References to the Clerk’s
Record for Bannock County case number CR03-19-13019 will be to “48434 R.”
3
sentences. (48433 R., pp.127-28; 48434 R., pp.87-88.) Thirty days after filing his Rule 33(d)
motion, Mr. Kugler filed a pro se “Motion to Appeal Rule 35 Denial” and requested reduction of
his sentences in both cases. (48433 R., pp.133-37; 48434 R., pp.93-97.) Six weeks later, the
district court denied both motions. (48433 R., pp.139-43; 48434 R., pp.99-103.) In denying
Mr. Kugler’s “Motion to Appeal Rule 35 Denial,” the district court construed the motion as a
successive Rule 35 motion and ruled it was without jurisdiction to consider the successive
motion. (48433 R., pp.141-42; 48434 R., pp.101-02 (citing State v. Bottens, 137 Idaho 730, 732-
33 (Ct. App. 2002).) In denying the Rule 33(d) motion, the district court ruled it had no authority
to commute a sentence once the sentence was imposed and executed. (48433 R., p.142; 48434
R., p.102 (citing State v. Starry, 103 Idaho 834, 835 (Ct. App. 1997).)
The Idaho Supreme Court determined that Mr. Kugler timely appealed from the district
court’s memorandum decision denying both motions. (See 48433 R., p.152; 48434 R., p.112.)
ISSUE
Whether the district court abused its discretion by denying Mr. Kugler’s Idaho Criminal Rules
33(d) and 35 motions.
ARGUMENT
The District Court Abused Its Discretion By Denying Mr. Kugler’s Motions
In both his Rule 33(d) motion and his “Motion to Appeal Rule 35 Denial,” Mr. Kugler
requested a reduction in his sentence. He recognizes that both motions are more accurately
characterized as motions falling under Rule 35(b).2 Mindful that Mr. Kugler’s “Motion to Appeal
2 Mr. Kugler also recognizes that the authority to commute his sentence lies within the Board of
Pardons and that any request for a commutation should be brought before the Commission of
Pardons and Parole. See Idaho Const. art. IV, Section 7; I.C. Section 20-240; Starry, 130 Idaho at
835.
4
Rule 35 Denial” is in effect a successive Rule 35(b) motion, and because his Rule 33(d) motion,
which requests a reduction in his sentence, is more accurately characterized as a motion falling
under Rule 35, see, e.g., Starry, 130 Idaho at 835, and therefore the district court had no
jurisdiction to consider his successive Rule 35(b) motion, see, e.g., Bottens, 137 Idaho at 732-
33, Mr. Kugler nevertheless asserts the district court abused its discretion by denying his
motions.
If a sentence is within the statutory limits, a request for a sentence reduction under Rule
35(b) is a plea for leniency and is reviewed for an abuse of discretion. State v. Huffman, 144
Idaho 201, 203 (2006). In determining if an abuse of discretion occurred, appellate review
centers on whether the trial court: “(1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason.” State v. Bodenbach, 165 Idaho 577, 591 (2019). “When presenting a Rule 35 motion,
the defendant must show that the sentence is excessive in light of new or additional information
subsequently provided to the district court in support of the Rule 35 motion.” State v. Huffman,
144 Idaho 201, 203 (2007).
In support of his Rule 33(d) motion, Mr. Kugler argued that:
I have been sentenced to 3 fixed and 3 [indeterminate.] According to IDOC
my fixed will be up 11[-]16[-]2020. I am asking the Court to grant me the
following sentence reduction: on my 3 fixed reduced down to 18 months and
having already served 8 months of this it would leave me 10 months left [until I
would be eligible for] parole [in] May or June[,] and add 18 months to my
[indeterminate,] changing it to 4 ½ years. Or consider changing my 3 + 3 to 2
[years] fixed[, with] 3 [indeterminate] . . . [because of] the recent Covid-19
pandemic and [outbreak] in the prison[,] along with overcrowding. Also my
fiancée has recently been diagnosed with [Parkinson’s] and a brain tumor . . .
(48433 R., pp.127-28; 48434 R., pp.87-88.)
In support of his second Rule 35 motion, Mr. Kugler argued that:
5
I[,] Jared R. Kugler[,] respectfully ask the Court to reconsider the denial of my
Rule 35 and grant me the relief I am seeking in this appeal due to the following
substantial facts presented.
I.D.O.C. has an increasing [outbreak] of [the] Covid-19 virus. It has taken a
life and infected many. It feels like a “death” sentence being exposed to the virus
without the ability to properly protect myself or the ability of social distancing,
[and] being warehoused in a county jail with[out] treatment or any rehabilitative
“correction” seems unjustified[.] I.D.O.C. has openly admitted and stated to the
public it’s emergency to “find housing” and at this moment all movement is shut
down.
I have also received [information about] newly developed medical issues [in
my] immediate family[.] My significant other . . . of 4 years [to whom] I am
engaged to and soon to marry is my only family and family support I have in my
life. She has recently been diagnosed with [Parkinson’s] [and] a brain tumor that
is growing and may be terminal[.]
I feel [its] reasonable to ask the courts to reconsider and grant me relief[.]
I ask the Court for the following relief[:]
To reduce my sentence from a 3 year fixed – to take 18 months off [the fixed
portion and] add . . . it on my indeterminate[.] [B]y doing this[,] my fixed time
would be up in May or June 2021.
[Alternatively,] take 12 months off my fixed [time] and . . . put [it] on my
indeterminate. This [would have] my fixed portion of my sentence [end] in Oct.-
Nov. 2021.
This [reduction] would relieve medical pressures and burden[s] [on] my loved
one and on myself. I understand I am accountable for the law I broke, I agree and
have no argument in that my life has and is changing[,] as the nation is[,] through
this national pandemic. Please consider and weigh my situation [justly]. I feel
[it’s] in the interest of justice under the constitution of the United States and the
State of Idaho. Thank you.
(48433 R., pp.133-36; 48434 R, pp.93-96.) Based on the above information, Mr. Kugler asserts
that the district court abused its discretion by denying his successive motions.  He asserts that
had the district court given proper consideration to the statements in support of his motions, it
would have granted his motions and reduced his sentences.
CONCLUSION
6
Mr. Kugler respectfully requests that the memorandum decision denying his Rule 35 and
Rule 33(d) motions be vacated and his sentences be reduced by one and one-half years.
Alternatively, he asks that his cases be remanded to the district court for further proceedings.
DATED this 10th day of August, 2021.
/s/ Emily M. Joyce
EMILY M. JOYCE
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of August, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
EMJ/eas


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