               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40651

STATE OF IDAHO,                                  )      2013 Unpublished Opinion No. 812
                                                 )
       Plaintiff-Respondent,                     )      Filed: December 31, 2013
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
AMADO GUTIERREZ, III,                            )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Judgment of conviction and determinate life sentence for lewd conduct with a
       minor under sixteen, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

                     Before GUTIERREZ, Chief Judge; GRATTON, Judge;
                                 and MELANSON, Judge

PER CURIAM
       Amado Gutierrez, III, entered an Alford 1 plea of guilty to lewd conduct with a minor
under sixteen. Idaho Code § 18-1508. The district court sentenced Gutierrez to a determinate
life term. Gutierrez appeals, contending his sentence is excessive.
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.



1
       See North Carolina v. Alford, 400 U.S. 25 (1970).



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State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1884 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        Gutierrez argues his sentence is excessive in light of his advanced age and poor physical
health. Gutierrez was seventy-one years of age at the time and suffers from diabetes and heart
problems. The district court acknowledged Gutierrez’s age and noted “at some point as a matter
of biological imperative, you’re not going to be able to commit the sort of sexual offenses that
you have in the past.” However, the district court was more concerned that Gutierrez was still
creating victims.
        The record in this case reveals that this is Gutierrez’s third conviction for a sexual offense
against minor children.     Despite having previously completed four years of sex offender
treatment, Gutierrez chose to reoffend. Although Gutierrez admitted to police that he sexually
touched the three young girls, Gutierrez blamed the victims. The psychosexual evaluation
revealed that Gutierrez “poses a high risk to reoffend,” is “capable of acting in predatory ways,
using grooming techniques and manipulation,” and is less amenable to treatment. The district
court found Gutierrez presented a risk to the community based on Gutierrez’s criminal history,
failure to rehabilitate, and lack of amenability to treatment.
        The issue before this Court is not whether the sentence is one that we would have
imposed, but whether the sentence is plainly excessive under any reasonable view of the facts.
Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the
sentence is excessive, we are not free to substitute our view for that of the district court. Id.




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Having thoroughly reviewed the record in this case, we cannot say that the district court abused
its discretion. Therefore, Gutierrez’s judgment of conviction and sentence are affirmed.




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