University of Idaho College of Law

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Not Reported Idaho Supreme Court Records & Briefs 
9-2-2021 
State v. Bacon Appellant's Brief Dckt. 48648 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48648-2021
Plaintiff-Respondent, )
) BANNOCK COUNTY NO. CR03-18-13682
v. )
)
TIFFANY K. BACON, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Tiffany K. Bacon appeals from the district court’s order revoking her probation and
executing a modified sentence of five years, with two years determinate, for possession of a
controlled substance.
Statement of the Facts & Course of Proceedings
In 2019, Ms. Bacon pleaded guilty to possession of a controlled substance,
methamphetamine, and the district court imposed a unified sentence of five years, with three
years determinate, and the court suspended the sentence and placed Ms. Bacon on probation for a
Electronically Filed
9/2/2021 9:24 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
period of four years.  (R., p.88.)  Ms. Bacon admitted to violating the terms of her probation in
January, 2020, and the district court continued her on probation.  (R., pp.129; 131.)
In December, 2020, the State again alleged that Ms. Bacon had violated her probation.
(R., p.141.)  Specifically, the State alleged that Ms. Bacon had been using methamphetamine,
was discharged from D6 aftercare for non-compliance, had changed her residence without
obtaining permission, and had left the Sixth Judicial District without permission.  (R., pp.140-
41.)  These violations stemmed from accusations that Ms. Bacon began using methamphetamine
daily since July, 2020, and moved to Bozeman, Montana and lived with her brother.  Ms. Bacon
admitted to violating her probation and the district court revoked probation and executed a
modified sentence of five years, with two years determinate.  (R., p.152.)  Ms. Bacon appealed.
(R., p.155.)
ISSUE
Did the district court abuse its discretion when it revoked Ms. Bacon’s probation?
ARGUMENT
The District Court Abused Its Discretion When It Revoked Ms. Bacon’s Probation
The district court is empowered by statute to revoke a defendant’s probation under
certain circumstances. I.C. §§ 19-2602, -2603, 20-222. The Court uses a two-step analysis to
review a probation revocation proceeding. State v. Sanchez, 149 Idaho 102, 105 (2009). First, the
Court determines “whether the defendant violated the terms of his probation.” Id. Second, “[i]f it
is determined that the defendant has in fact violated the terms of his probation,” the Court
examines “what should be the consequences of that violation.” Id. The determination of a
probation violation and the determination of the consequences, if any, are separate analyses. Id.
3
Here, Ms. Bacon does not challenge her admission to violating her probation. “When a
probationer admits to a direct violation of her probation agreement, no further inquiry into the
question is required.” State v. Peterson, 123 Idaho 49, 50 (Ct. App. 1992). Rather, Ms. Bacon
submits that the district court abused its discretion by revoking her probation.
“After a probation violation has been proven, the decision to revoke probation and
pronounce sentence lies within the sound discretion of the trial court.” State v. Roy, 113 Idaho
388, 392 (Ct. App. 1987). “A judge cannot revoke probation arbitrarily,” however. State v. Lee,
116 Idaho 38, 40 (Ct. App. 1989). “The purpose of probation is to give the defendant an
opportunity to be rehabilitated under proper control and supervision.” State v. Mummert, 98
Idaho 452, 454 (1977). “In determining whether to revoke probation a court must consider
whether probation is meeting the objective of rehabilitation while also providing adequate
protection for society.” State v. Upton, 127 Idaho 274, 275 (Ct. App. 1995). The court may
consider the defendant’s conduct before and during probation. State v. Roy, 113 Idaho 388, 392
(Ct. App. 1987).
In this case, Ms. Bacon submits that the district court erred by revoking her probation
because her probation was achieving its rehabilitative objective.  Ms. Bacon addressed the court
at the disposition hearing, stating,
So – the whole reason all of this is happening is because I, like, I reach out for
help to my probation officer, and, yeah, I did make a mistake but – and I ended up
getting kicked out of the halfway house, and I ended up getting a new P.O.
Because of that I think is why – but I reached out to my new P.O. about three or
four times, and I even went in to the office seeking help, and he said that it was
responsibility – which I understand it is, but at the same time, I did what I thought
was best, and I ended up – when I did go to Bozeman, I got clean for two months,
and I have a full-time job with – I signed a W-9 up there too, and, you know, like,
I feel like as though I have been punished enough being in this jail.
4
I have caught – I have Covid-19 right now.  And, like, I just feel as though, like I
have made mistakes, but I was honest about them, and, like, I reached out to my
P.O. many times and didn’t get the help that I was needing.  So I just feel, well,
kind of not butt hurt, but feel like it is unfair, and I wasn’t given the right
opportunity under I did make my mistake in July.
And I was trying to be honest with him as possible, and I even kept in contact
with him the whole time that I was in Bozeman, and then I finally had to reach out
to my brother for help because I ended up getting into a situation – into a bad
situation up there where the police were called, and then I came back and directly
turned myself in.
(Tr., p.14, L.3 – p.15, L.12.)
Counsel made the following recommendation to the court:
I want to just pursue other options to see if we can get her into a treatment court
or something, but [Ms. Bacon] appears to be resigned to doing that.  I don’t know
that a second retained jurisdiction1 wouldn’t be appropriate.
If you are going to impose the sentence, Your Honor, I would ask that you reduce
the fixed term to two years rather than three so she can be in front of the Parole
Board that much sooner.
(Tr., p.13, Ls.12-21.)
Considering that Ms. Bacon had been honest with her probation officer, acknowledged
relapsing on methamphetamine, turned herself in, suffered from Covid-19, and that counsel
recommended a treatment court, Ms. Bacon submits that she had been “punished enough” and
that the district court abused its discretion by revoking probation rather than placing Ms. Bacon
in a treatment court.
1 Counsel referenced a “second” retained jurisdiction.  (Tr., p.13, Ls.15-17.) Earlier in the
hearing he mentioned that he did not see that Ms. Bacon had done a retained jurisdiction in this
case.  (Tr., p.13, Ls.5-6.)  However, Ms. Bacon responded that she had done a retained
jurisdiction and “I just got off of it in January.”  (Tr., p.13, Ls.9-10.)  Ms. Bacon had not been
placed on a retained jurisdiction in this case though.  Ms. Bacon had other pending cases in Twin
Falls County, CR42-19-3852 and CR42-19-0047, where she had successfully completed the
retained jurisdiction program.
5
CONCLUSION
Ms. Bacon respectfully requests that this Court reduce her sentence as it deems
appropriate.  Alternatively, she requests that her case be remanded to the district court for a new
sentencing hearing.
DATED this 2nd day of September, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of September, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


English

State v. Bacon Appellant\u27s Brief Dckt. 48648

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
8-5-2021 
State v. Phillips Appellant's Brief Dckt. 48679 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
I.S.B. #9841
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48679-2021
Plaintiff-Respondent, )
) ADA COUNTY NO. CR01-20-29388
v. )
)
TIMMY PRESTON PHILLIPS, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
)
STATEMENT OF THE CASE
Nature of the Case
After Timmy Phillips pled guilty to possession of a controlled substance
(methamphetamine), the district court sentenced him to seven years, with one year fixed.
Mr. Phillips appeals, and he argues that the district court abused its discretion by imposing an
excessive sentence.
Statement of the Facts & Course of Proceedings
According to the probable cause affidavit in support of arrest, Mr. Phillips was pulled
over for a traffic violation.  (R., pp.11-12.)  A drug dog subsequently alerted on Mr. Phillips’s
Electronically Filed
8/5/2021 2:04 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
vehicle.  (R., p.12.)  Mr. Phillips ultimately “consented to a search of his person”, and an officer
found “a glass bulbous pipe in his right shoe” that had “a white crystalline substance on the
interior and black burn marks on the underside of the bulb.”  (R., p.12.)  The officer “also located
a small clear plastic baggie in Phillips’ left shoe, which contained a white crystalline substance”
that later tested positive for methamphetamine.  (R., p.12.)
The State consequently filed a criminal complaint in July 2020 charging Mr. Phillips with
possession of a controlled substance (methamphetamine) and possession of drug paraphernalia.
(R., pp.9-10.)  Pursuant to a plea agreement, Mr. Phillips pled guilty to possession of a controlled
substance (methamphetamine) and the possession of drug paraphernalia charge was dismissed.1
(Tr., p.14, L.9—p.15, L.18; R., pp.57-67.)  The State also agreed to recommend an executed
sentence of seven years, with one year fixed, at sentencing.  (Tr., p.6, L.25—p.7, L.6; R., p.66.)
At sentencing, the State recommended a sentence of seven years, with one year fixed, and
asked that the sentence be executed.  (Tr., p.24, Ls.10-11.)  Mr. Phillips recommended a sentence
of four years, with one year fixed, and asked that the district court place him onto probation or
retain jurisdiction (a “rider”).2  (Tr., p.25, Ls.3-7, p.27, Ls.18-22.)  The district court sentenced
Mr. Phillips to serve seven years, with one year fixed.  (Tr., p.34, Ls.1-3; R., pp.73-76.)
Mr. Phillips timely appealed from the judgment of conviction.  (R., pp.83-85.)
1 As part of that plea agreement, the State also agreed to dismiss an unrelated criminal case,
CR01-20-35978, and to not file a habitual offender enhancement.  (R., p.66.)
2 Defense counsel also stated at sentencing that:
I think the Court could order that he serve 180 day of jail, additionally, forthwith,
take the SAP and ABC program in custody, allow him to petition the Court for
early release upon completion of those, and verification that he has secured either
the New Life program or another sober living house option with a treatment
component in addition to that.
(Tr., p.25, Ls.8-15.)
3
ISSUE
Did the district court abuse its discretion when it sentenced Mr. Phillips to serve seven years,
with one year fixed?
ARGUMENT
The District Court Abused Its Discretion When It Sentenced Mr. Phillips To Serve Seven Years,
With One Year Fixed
“Where the sentence imposed by a trial court is within statutory limits, ‘the appellant
bears the burden of demonstrating that it is a clear abuse of discretion.’” State v. Windom, 150
Idaho 873, 875 (2011) (quoting State v. Stevens, 146 Idaho 139, 148 (2008)).
When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).  In this matter, Mr. Phillips’s sentence
does not exceed the statutory maximum. See I.C. § 37-2732(c)(1) (seven-year maximum).
Accordingly, to show that the sentence imposed was an abuse of discretion, Mr. Phillips “must
show that the sentence, in light of the governing criteria, is excessive under any reasonable view
of the facts.” State v. Strand, 137 Idaho 457, 460 (2002).
“‘[R]easonableness’” implies that a term of confinement should be tailored to the
purposes for which the sentence is imposed.” State v. Toohill, 103 Idaho 565, 568 (Ct. App.
1982).
In examining the reasonableness of a sentence, the Court conducts an independent
review of the entire record available to the trial court at sentencing, focusing on
the objectives of criminal punishment: (1) protection of society; (2) deterrence of
the individual and the public; (3) possibility of rehabilitation; and (4) punishment
or retribution for wrongdoing.
4
State v. Stevens, 146 Idaho 139, 148 (2008).  “A sentence is reasonable if it appears necessary to
accomplish the primary objective of protecting society and to achieve any or all of the related
goals of deterrence, rehabilitation, or retribution.” State v. Delling, 152 Idaho 122, 132 (2011).
In this case, Mr. Phillips asserts the district court did not exercise reason and therefore
abused its discretion by imposing a sentence that is excessive under any reasonable view of the
facts.  Specifically, Mr. Phillips contends that the district court should have sentenced him to a
lesser term of imprisonment, probation, or a rider in light of the mitigating factors, including his
substance abuse issues and acceptance of responsibility.
First, Mr. Phillips’s substance abuse issues, the impact of his substance abuse on his
behavior, his need for treatment, and his willingness to participate in treatment are strong factors
in mitigation.  The impact of substance abuse on the defendant’s criminal conduct is “a proper
consideration in mitigation of punishment upon sentencing.” State v. Osborn, 102 Idaho 405,
414 n.5 (1981).  Prior to sentencing, Mr. Phillips completed a Global Appraisal of Individual
Needs (“GAIN”) assessment.  (PSI,3 pp.15-24.)  In that assessment, Mr. Phillips self-reported
symptoms sufficient to meet the criteria for amphetamine use disorder severe, and the assessor
found that Mr. Phillips “meets lifetime criteria for substance use disorder severe.”  (PSI, p.17.)
Mr. Phillips began using methamphetamine at the   (PSI, p.17.)
Mr. Phillips told the presentence investigator that “the main reason” he uses methamphetamine is
to forget the trauma associated with having been “beaten and raped in prison” in 1995.  (PSI,
pp.3-4, 23.)  At sentencing, defense counsel explained that Mr. Phillips “has not been able to
separate himself from him addiction” and that “prior trauma, which was discussed in the PSI,
3 Citations to the “PSI” refer to the 94-page electronic document included with the confidential
sentencing materials labeled “Appeal Confidential Exhibits 04-28-2021 14.26.11 46538817
96181FB1-44B9-466A-81B6-840192553095”.
5
from the mid-1990s what happened to him in the penitentiary has caused him to use, self
medicate.”  (Tr., p.26, Ls.12-15.)  Mr. Phillips informed the presentence investigator that he is
“addicted to meth” and “was getting high to hide from [his] past.”  (PSI, p.1.)  Prior to his arrest
in this case, Mr. Phillips was intravenously using “an eight ball a day of meth.”4  (PSI, p.15.)
Mr. Phillips started using heroin for the first time two weeks before he was arrested on an
unrelated case in September 2020, and he “would use it every couple days just to come down for
a bit.”  (PSI, pp.5, 15.)  Mr. Phillips disclosed that he had “[o]verdosed on heroin ‘one week
before arrest.’”  (PSI, p.5.)
Despite Mr. Phillips’s near lifelong addiction to methamphetamine, the GAIN assessor
found that Mr. Phillips’s “responses indicate high motivation for treatment” and that Mr. Phillips
“reported that he has quit using substance and is about 100% ready to remain abstinent.”  (PSI,
p.20.)  Prior to sentencing, Mr. Phillips applied for the “New Life Recovery program”, which is a
“very highly intense supervised program” that lasts for about a year.  (Tr., p.24, L.20—p.25, L.2,
p.27, Ls.10-17.)  At sentencing, defense counsel asserted that Mr. Phillips “wants to stop the
revolving door, Your Honor, that he’s essentially found himself on” and that Mr. Phillips “knows
that release without serious structure will be detrimental to him.”  (Tr., p.26, L.24—p.27, L.6.)
Mr. Phillips informed the district court at sentencing that he had set up “personal trauma
counseling” in the community.  (Tr. p.30, Ls.1-4.)   Mr. Phillips acknowledged the severity of his
drug addiction by stating that he was “not looking to be released to the street” and that he knows
that he has “to go straight into a drug program.”5  (Tr., p.30, Ls.12-14.)
4 Mr. Phillips told the presentence investigator that he “was using 1.7 to 7 grams” of
methamphetamine daily prior to his arrest in this case.  (PSI, p.5.)
5 The presentence investigator noted that Mr. Phillips “may benefit from participation in a rider
program” since a rider “would provide Mr. Phillips an opportunity to obtain and maintain
6
At sentencing, the district court told Mr. Phillips “you present a danger to the community
which is the primary concern.  You tend to steal stuff; in support of your addition [sic], probably.
But you still tend to manifest that addiction in ways that harm others.”  (Tr., p.32, L.23—p.33,
L.6.)  However, Mr. Phillips explained that he was “not trying to alleviate [his] past 30 years of
criminal history, but it all centers around drugs.  If I can get drugs out of my life, this would be
the last time I sit in front of a judge, period.  I know that.  And I am asking for help.”  (Tr., p.31,
Ls.15-20.)  Defense counsel also informed the district court that he did not “know if there is any
assurance that the community will be any safer” by sending Mr. Phillips to prison compared to
allowing Mr. Phillips to participate in a drug treatment program since the drug treatment
program could potentially give Mr. Phillips the tools and skills that would be necessary to
prevent future substance abuse.  (Tr., p.27, L.18—p.28, L.4, p.28, L.19—p.29, L.25.)
Mr. Phillips’s substance use issues, the impact of his substance abuse on his behavior, his
need for treatment, and willingness to participate in treatment are strong mitigating factors that
support leniency in this case.
Second, Mr. Phillips accepted responsibility for the crime.  Acceptance of responsibility
is a factor in favor of mitigation. State v. Shideler, 103 Idaho 593, 595 (1982).  Mr. Phillips
stated in his written comments to the district court as part of the presentence investigation report
that he “take[s] full responsibility for this”, and that he wants to live “drug free.”  (PSI, p.13.)
At sentencing, Mr. Phillips informed the district court that he wanted to “start off by taking full
responsibility for [his] actions.”  (Tr., p.28, Ls.11-13.)  After acknowledging his need for an
intensive drug treatment program, Mr. Phillips stated that “I’m not trying to skirt my
responsibilities from my actions.  Far from it. I’m trying to stop the revolving door I am stuck
sobriety for an extended period of time in a controlled environment, while providing him
education and treatment to prepare him for release into the community.”  (PSI, p.14.)
7
in.”  (Tr., p.30, Ls.21-25.)   These statements of acceptance of responsibility stand in favor of
mitigation.
In sum, Mr. Phillips maintains the district court did not exercise reason at sentencing
because it failed to give adequate weight to the mitigating factors in his case. Proper
consideration of these factors supports his request for probation, a rider, or a lesser prison.
Mr. Phillips submits that the district court abused its discretion by imposing an excessive
sentence.
CONCLUSION
Mr. Phillips 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 5th day of August, 2021.
/s/ Jacob L. Westerfield
JACOB L. WESTERFIELD
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5th 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
JLW/eas


State v. Phillips Appellant\u27s Brief Dckt. 48679

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State v. Radford  Respondent\u27s Brief Dckt. 48553

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
11-16-2021 
State v. Racehorse Respondent's Brief Dckt. 48788 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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"State v. Racehorse Respondent's Brief Dckt. 48788" (2021). Not Reported. 7306. 
https://digitalcommons.law.uidaho.edu/not_reported/7306 
This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at 
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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 
Boise, ID  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov  
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO 
 
 Plaintiff-Respondent, 
 
v. 
 
TYSON I. RACEHORSE 
 
 Defendant-Appellant. 
 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NO. 48788-2021 
 
Ada County 
Case No. CR01-21-5195 
 
 
RESPONDENT’S BRIEF 
 
 Has Tyson I. Racehorse failed to show that the district court abused its sentencing 
discretion when it imposed a sentence of seven years with three years determinate, and retained 
jurisdiction for 365 days, upon his conviction for possession of a controlled substance? 
 
 
ARGUMENT 
Racehorse Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 Four months following his release after serving the full term for his conviction of 
possession of methamphetamine, police arrested Tyson I. Racehorse again for possession of a 
controlled substance with intent to deliver and possession of drug paraphernalia.  (PSI, pp. 1-5.)  
Electronically Filed
11/16/2021 10:32 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
 
Following a traffic stop, the driver alerted police that Racehorse threw a bag of methamphetamine 
under the passenger’s side seat, where Racehorse had been sitting.  (PSI, p. 55.)  There, police 
found a plastic baggie that contained six additional baggies, each containing methamphetamine, 
and a glass pipe in the center console.  (PSI, pp. 46, 55.)  In Racehorse’s pockets, police found a 
digital scale and another baggie of methamphetamine.  (PSI, p. 55.) 
 The state charged Racehorse with possession of a controlled substance with intent to 
deliver and possession of drug paraphernalia.  (R., pp. 16-17.)  Racehorse pleaded guilty pursuant 
to a plea agreement in which the state amended the first charge to possession and dismissed the 
remaining charge.  (R., pp. 18-31.)  The district court imposed a sentence of seven years, three 
fixed, and retained jurisdiction for a period of time not to exceed 365 days.  (R., pp. 38-41.) 
 Racehorse filed a timely notice of appeal. (R., pp. 46-47.) 
 Racehorse challenges the district court’s decision to sentence him to seven years, three 
determinate, with retained jurisdiction not to exceed 365 days.  Racehorse has failed to show an 
abuse of discretion. 
    
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 
201, 159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 
38 P.3d 614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  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; 
3 
 
(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. Racehorse Has Shown No Abuse of the Court’s Discretion 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  In determining whether the appellant met this burden, 
the court considers the entire sentence but, because the decision to release the defendant on parole 
is exclusively the province of the executive branch, presumes that the determinate portion will be 
the period of actual incarceration.  State v. Bailey, 161 Idaho 887, 895, 392 P.3d 1228, 1236 (2017) 
(citing Oliver, 144 Idaho at 726, 170 P.3d at 391).  To establish that the sentence was excessive, 
the appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Farwell, 144 Idaho at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation, or retribution.’”  Bailey, 161 Idaho at 895-96, 392 
P.3d at 1236-37 (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2015)). 
 When imposing sentence, the district court considered the record, the comments made by 
counsel for the state and counsel for the defense, Toohill1 factors of protection of society, 
deterrence, rehabilitation, punishment, and the factors set forward in Idaho Code § 19-2521.   (Tr., 
                                            
1 State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).   
4 
 
p. 37, L. 21 – p. 38, L. 3.)  In consideration of Racehorse’s inability to abstain from substance 
abuse without a more structured environment, the district court imposed sentence but placed 
Racehorse on a rider to “attend or address [his] substance abuse issues.”  (Tr., p. 38, Ls. 4-21.) 
 Racehorse claims that because he recognized his substance addiction, desired treatment, 
expressed regret and remorse for his actions, had taken classes while jailed, and claimed that both 
the PSI and the GAIN evaluation recommended treatment rather than a prison sentence, the district 
court should have imposed a lesser sentence.  (Appellant’s brief, p. 5.)  The district court’s exercise 
of discretion, however, is supported by the record.   
The GAIN evaluator wrote Racehorse “has continued to use substances and engage in 
illegal behaviors regardless of prior legal interventions and is not likely to succeed in a less 
restrictive level of care at this time.”  (PSI, p. 15.)  Racehorse has long recognized his substance 
abuse, stating to the court in the 2017 case that “I also know once [I] start to relapse I start to spiral 
out of control, until I end up in jail” and assured the court he was committed to recovery through 
treatment.  (PSI, p. 79).  Despite his diagnosis of severe alcohol use disorder, severe amphetamine 
use disorder, and severe cannabis use disorder, Racehorse reported to the GAIN evaluator in this 
case that he was only about “75% ready to remain abstinent from substances.”  (PSI, pp. 3, 11, 
15.)  Through the Idaho Dept. of Corrections, Racehorse received outpatient treatment for moral 
reconation therapy, a cognitive-behavioral treatment meant to lead to better decision making, and 
anger management in 2014, as well as inpatient treatment for cognitive behavioral intervention for 
substance use in 2018. (PSI, pp. 3-4).  Despite his pleas to be given a chance to “understand why 
[he does] these things” prior to sentencing in 2017 (PSI, p. 79), Racehorse has “not utilized any of 
the tools he learned in treatment prior to his [2020] release” (PSI, p. 4).  Racehorse’s claims that 
the aforementioned are mitigating is unpersuasive.   
5 
 
 The present case is Racehorse’s fifth felony conviction for charges including a prior 
possession of a controlled substance, eluding an officer, and two counts of felony DUI. (PSI, pp. 
2-3, 61, 67, 69.)  He has over 40 misdemeanor convictions for charges including domestic battery 
twice, battery, resisting officers twice, contempt of court twice, disturbing the peace, malicious 
injury to property, petit theft, unlawful entry, trespassing twice, possession of drug paraphernalia 
three times, failure to purchase a driver’s license three times, driving without privileges four times, 
DUI four times, parole violations seven times, and more.  (PSI, pp. 60-70.)  He has served periods 
of retained jurisdiction, one of which he failed.  (PSI, p. 71.)  While incarcerated at the IDOC, he 
received sanctions 14 times for offenses including sexual harassment of staff, harassment, threats, 
violence, destruction of property, battery, and theft.  (PSI, pp. 38-39.)  While jailed for the present 
offense, Racehorse received two disciplinary reports, one of which required officers to take him 
to the ground and force him into a holding cell.  (PSI, pp. 27-37.)  Unsurprisingly, his 2017 
presentence investigation placed him in the “high” risk category to reoffend with a LSI-R score of 
43.  (PSI, p. 79.)  Despite his extensive criminal history, the district court granted him a chance to 
participate in another retained jurisdiction so he could get “some structured help.”  (Tr., p. 38, L. 
17 – p. 39, L. 19.) 
 There is no doubt Racehorse’s substance abuse issues have contributed to his criminal 
record going back to his time as a young man.  He also has a long history of failing to submit to 
authority seemingly unrelated to his drug addiction, bad behavior while, presumably, abstaining 
from drugs and alcohol while incarcerated, and acts of violence and theft, victimizing members of 
the community.  In light of his extensive criminal record, and the need to protect society from 
further bad acts, a period of incarceration is necessary, appropriate, and well supported by the 
record. 
6 
 
    
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 16th day of November, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 16th day of November, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
JUSTIN M. CURTIS 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


State v. Racehorse  Respondent\u27s Brief Dckt. 48788

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State v. Paramo Respondent's Brief Dckt. 48840 
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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. 
 
LUIS PARAMO 
 
 Defendant-Appellant. 
 
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NO. 48840-2021 
 
Twin Falls County 
Case No. CR42-20-2954 
 
 
RESPONDENT’S BRIEF 
 
 Has Luis Paramo failed to show that the district court abused its sentencing discretion when 
it imposed aggregate sentences totaling five years with two years determinate upon his convictions 
for eluding a peace officer and DUI? 
 
ARGUMENT 
Paramo Has Failed to Show that the District Court Abused Its Discretion 
A. Introduction 
 While riding home during rush hour traffic in his marked police vehicle, Sergeant Ken 
Mencl feared for his life when he saw Luis Paramo speeding toward him at 97 miles per hour in 
the wrong lane of traffic.  (PSI, p. 15; Trial Tr., p. 108, Ls. 16-22; p. 110, Ls. 6-7.)  Sergeant Mencl 
testified, “I’ve been in this job for 20 years, and only on a very few occasions have I been in a 
Electronically Filed
10/26/2021 9:09 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2 
 
situation where I thought that I might not make it home, and this was one of those situations.”  
(Trial Tr., p. 110, Ls. 9-12.)  After nearly being run off the road, Sergeant Mencl activated his 
lights and sirens, U-turned, and proceeded to pursue Paramo, attempting to intervene to avoid 
collision on the congested road.  (Trial Tr., p. 111, Ls. 5-22.)  While running, Paramo failed to 
negotiate a turn, ran over a traffic sign damaging his windshield and hood, through a field where 
he spun out, and back onto the road where he continued to elude Sergeant Mencl, traveling at 75 
miles per hour.  (PSI, p. 15; Trial Tr., p. 114, Ls. 11-16; p. 119, Ls. 19-22; p. 150, L. 25 – p. 152, 
L. 19.)  Paramo surprised Sergeant Mencl when he suddenly turned into the parking lot of a 
McDonalds and stopped.  (PSI, p. 15; Trial Tr., p. 122, L. 22 – p. 123, L. 12.)   
Sergeant Mencl initiated a felony stop on the vehicle, handcuffed Paramo, and observed 
many indications that Paramo was intoxicated, including glassy, bloodshot eyes, a strong odor of 
alcohol on his breath, and slurred speech.  (PSI, p. 15.)  Sergeant Mencl considered asking Paramo 
if he’d be willing to do standard field sobriety tests but decided the tests “would be difficult if not 
hazardous based on [Paramo’s] inability to walk well.”  (Trial Tr., p. 133, Ls. 7-17.)  Though he 
claimed to have had only three beers, Paramo’s blood alcohol content was 1.53/1.54.  (PSI, pp. 16, 
25.)  When asked why he didn’t stop for Sergeant Mencel, Paramo answered that he “didn’t want 
to go to jail.”  (PSI, p. 16; Trial Tr., p. 186, Ls. 14-20.)  Later, when asked about the evening of 
his arrest, Paramo recalled he was pulled over because his front window was broken, passed a field 
sobriety test, was not driving fast and never attempted to flee police.  (PSI, p. 16.)   
 The state charged Paramo with eluding a peace officer and operating a motor vehicle while 
under the influence of alcohol (DUI).  (R., pp. 48-49.)  A jury found Paramo guilty.  (R., p. 179.)  
The district court imposed aggregate sentences of five years, with two fixed, and suspended 
3 
 
Paramo’s driver’s license for a period of three years following his incarceration.  (R., pp. 188-90.)  
Paramo filed a timely notice of appeal.  (R., 195–97.) 
 Paramo challenges the district court’s decision to impose an aggregate sentence of five 
years with two years fixed.  Paramo has failed to show an abuse of discretion. 
    
B. Standard of Review 
 The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 
201, 159 P.3d 838 (2007)).  Where a sentence is within statutory limits, the appellant bears the 
burden of demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 
38 P.3d 614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  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. Paramo 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 applied factors for both Toohill1 and those set forward in Idaho Code § 
19-2521 (Sent. Tr., p. 16, Ls. 10-13.)  The district court recognized Paramo’s actions put society 
at risk and his “history indicates that [he] will continue to do so through [his] alcohol 
consumption.”  (Sent. Tr., p. 17, L. 25 – p. 18, L. 3.)  The district court hoped Paramo could be 
rehabilitated but, based on his comments before the district court during sentencing, recognized 
that he was “not taking responsibility for what [he’d] done” and had “no desire to change [his] 
behavior.”  (Sent. Tr., p. 18 Ls. 4-12.)  The district court considered Paramo’s “unwillingness to 
accept responsibility” and found it needed “to impose a sentence that deters [Paramo] from doing 
this in the future.”  (Sent. Tr., p. 18, L. 22 – p. 19, L. 1.)  Finally, the court found Paramo needed 
to be punished “given the danger [he] put society in.”  (Sent. Tr., p. 19, Ls. 2-4.)  Considering the 
aforementioned, the district court sentenced Paramo to a unified sentence of five years, with two 
fixed, despite the state’s request for a unified sentence of five years, with three and one-half fixed.  
(Sent. Tr., p. 7, L. 24 – p. 8, L. 1; p. 19, Ls. 5-11.)    
                                            
1 State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).   
5 
 
 Paramo argues that the district court should have sentenced him to a lesser term of 
imprisonment or retained jurisdiction because Paramo “recognized that alcohol contributed to his 
legal problems” and “he had an immigration detainer and expected to be deported.”  (Appellant’s 
brief, pp. 3-4).  These arguments are far from persuasive.  Rather than admit his own culpability, 
Paramo maintained “the police made up a story because they want him in jail.”  (PSI, p. 16.)  He 
told the GAIN-I evaluator, “I don’t drink that much.  I think I have been set up by police.”  (PSI, 
p. 25.)    
Despite his claim of no criminal record in another state, Paramo has a felony charge for 
possession of concentrated cannabis and two charges of DUI in California.  (PSI, pp. 6-7, 21.)  
Elmore County charged Paramo with alcoholic beverage–consume or possess open container by 
driver.  (PSI, pp. 21-22.)  Paramo meets the clinical criteria for alcohol use disorder but does not 
believe he needs treatment nor does he express any motivation to seek treatment or quit drinking.  
(PSI, pp. 20, 23, 26, 28.)  Paramo is an ongoing threat to the community due to his “high” LSI-R 
score of 30 combined with his resistance to treatment and failure to take responsibility for the 
crimes he committed.  (PSI, p. 17.)  He is not an appropriate candidate for retained jurisdiction or 
a reduced sentence.   
 Paramo denies every aspect of the night he attempted to elude Sergeant Mencl, and has 
instead concocted a new story of imagined events and personal persecution.  He denies he has a 
problem with alcohol but has been charged multiple times with alcohol related offenses and 
diagnosed with alcohol use disorder.  The district court recognized Paramo’s disregard for the 
safety of the community and his lack of accountability makes him a continued risk.  Paramo has 
failed to show an abuse of discretion.   
    
  
6 
 
CONCLUSION 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 26th day of October, 2021 
 
 
       /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      MOLLY GARNER 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 26th day of October, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
 
JENNY C. SWINFORD  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                         /s/ Kenneth K. Jorgensen   
      KENNETH K. JORGENSEN 
                                                                       Deputy Attorney General 
 


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