               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                               Docket Nos. 39146/39147/39783

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 408
                                                )
       Plaintiff-Respondent,                    )     Filed: March 19, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
THOMAS EDWARD PETERSON,                         )     THIS IS AN UNPUBLISHED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. Michael E. Wetherell, District Judge. Hon. Patrick H. Owen,
       District Judge.

       Orders of the district court revoking probation without sentence
       reduction, affirmed; orders of the district court denying Idaho Criminal Rule 35
       motions, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Thomas Edward Peterson appeals in Docket Nos. 39146 and 39147 from the orders
revoking probation and executing the sentences imposed upon his conviction for felony violation
of a no contact order, Idaho Code § 18-920. Peterson also appeals from the district courts’
orders denying his Idaho Criminal Rule 35 motions for reduction of sentence in Docket
Nos. 39146, 39147, and 39783. We affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Peterson was convicted in 2007 of domestic assault and three misdemeanor no contact
violations. He was placed on supervised probation and ordered to have no contact with the
victim, except by telephone. In 2008, the State charged Peterson, in Docket No. 39146, with



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felony violation of the no contact order. He pled guilty to the charge and the district court
imposed a unified term of five years with three years determinate and retained jurisdiction. At
the conclusion of the retained jurisdiction period, the district court suspended Peterson’s
sentence and placed him on probation for five years.
       In November 2009, the State filed a motion for probation violation, alleging Peterson
violated his probation officer’s directive to have no contact with the victim. Peterson admitted
the allegation and the district court continued his probation. The district court also issued a
written no contact order, providing that Peterson could only contact the victim by telephone.
       In June 2010, the State charged Peterson in Docket No. 39147 with felony violation of
the no contact order. Peterson pled guilty to the charge and the district court imposed a unified
term of five years with one and one-half years determinate, to run concurrently with his sentence
in Docket No. 39146. The district court suspended the sentence and placed him on probation for
five years. The State also filed a motion for probation violation in Docket No. 39146. Peterson
admitted the violation and the district court continued his probation. The district court also
ordered that Peterson have no contact with the victim, including telephone contact, until
October 2015.
       In December 2010, the victim reported to police officers that Peterson had repeatedly
called her and repeatedly sent her text messages. Pursuant to a search warrant, officers obtained
Peterson’s telephone records and discovered that Peterson called the victim 1,368 times and sent
her 1,899 text messages in the period subsequent to June 2010. The State charged Peterson, in
Docket No. 39783, with felony violation of a no contact order. The State also moved to revoke
Peterson’s probation in Docket Nos. 39146 and 39147. Pursuant to a plea agreement, Peterson
pled guilty to the no contact order violation and admitted to having violated his probation. The
district court revoked Peterson’s probation and ordered his underlying sentences executed. In
Docket No. 39783, the district court imposed a unified term of five years with one and one-half
years determinate, to run consecutive to his sentences in Docket Nos. 39146 and 39147.
       Peterson filed Rule 35 motions for reduction of sentences in all three cases. The district
court denied all the motions. Peterson timely appeals.




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                                                 II.
                                            ANALYSIS
       Peterson claims that: (1) the district court failed to maintain an accurate copy of the
record, causing his rights of due process to be violated; (2) the district court abused its discretion
by revoking probation in Docket Nos. 39146 and 39147 or, alternatively, failing to sua sponte
reduce his sentences; and (3) the district court abused its discretion by denying his Rule 35
motions.
A.     Due Process
       Telephone records between Peterson and the victim were not included in the appellate
record. Peterson filed a motion to augment the record with the telephone records, but his motion
was denied. In denying the motion, the Idaho Supreme Court stated, “this Court has been
advised by the district court that there are no records of the defendant’s telephone and texting
communications.” A defendant in a criminal case has a due process right to a “record on appeal
that is sufficient for adequate appellate review of the errors alleged regarding the proceedings
below.” State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012) (quoting State
v. Strand, 137 Idaho 457, 462, 50 P.3d 472, 477 (2002)). The defendant must show that any
omissions from the record prejudice his ability to pursue his appeal. See State v. Polson, 92
Idaho 615, 620-21, 448 P.2d 229, 234-35 (1968); State v. Cheatham, 139 Idaho 413, 415, 80
P.3d 349, 351 (Ct. App. 2003).
       Peterson claims he was deprived an adequate record on appeal because the district court
failed to maintain a copy of telephone records it relied on in pronouncing Peterson’s sentence in
Docket No. 39783. Peterson contends that the lack of telephone records in his appellate record
prejudiced him because he was not able to establish that the district court used the telephone
records “in aggravation, or at least to negate Mr. Peterson’s contention that [the victim] had been
initiating many of the contacts.” 1 The State contends that the district court did not have the
telephone records during sentencing, but instead relied on “police report materials” contained in
the presentence investigation report (PSI) that summarized the investigation of the telephone



1
        Peterson asserts that the appropriate remedy for his claim is “an order for his release
unless the State pursues a new sentencing hearing and a new disposition hearing before a
different judge.”


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records by the police. Further, the State also contends that even if the telephone records were
relied on by the district court at sentencing, Peterson failed to show how their absence on appeal
is prejudicial.
        At Peterson’s sentencing hearing in Docket No. 39783, the district court made the
following statements regarding the telephone records:
                And in the course of that investigation, according to the police report
        materials, they obtained a search warrant for the phone records from your victim.
        Those phone records show that between June 2010 and January 2011, they were
        able to document some 1,368 phone calls from you to the victim, in violation of
        your no contact order.
                Those phone records also indicated that on that same date--between those
        same dates, they were able to document 1,899 text messages between you and the
        victim of the no contact order. Those materials are within the presentence
        materials that I’ve reviewed, sir.

(emphasis added). It appears from this statement that the district court relied on the police report
materials in the PSI to show the amount of telephone calls and text messages between Peterson
and the victim. The PSI is part of the record on appeal. Peterson admitted to numerous
telephone and text communications. It was only the actual number of such communications that
the court referenced. That number was supplied by the police report. It is more than highly
unlikely that the court itself counted them.      Therefore, Peterson’s claim that the record is
inadequate fails. 2
        Even assuming that the district court did rely on the actual telephone records, Peterson
has failed to show how the absence of the records prejudices him on appeal. Peterson contends
that without the telephone records, he is unable to prove that the district court erred in its
pronouncement of his sentence by not considering the mitigating factor that the victim was the
one initiating contact with him. However, the record demonstrates that the district court did
consider this mitigating factor. The district court stated:



2
        Peterson argues that the telephone records were admitted as an exhibit in a preliminary
hearing for Docket No. 39783, thus showing that the telephone records were part of the record
below. Since the telephone records were admitted as an exhibit in the preliminary hearing,
Peterson argues that the district court must have been referring to and relying on the actual
telephone records during the sentencing hearing. The fact that actual records were included in
the prior proceeding does not show that they were attached to the PSI or were in the hands of the
court at sentencing.

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       This victim, at least presently, wants to have contact with you. The contact in this
       case was mutual and encouraged and, in some instances, instigated by the victim.
              ....
              I’ve taken, also, into account the degree of complicity of your victim.
       These contacts were welcomed by your victim and they went both ways.

The district court was aware that the victim instigated some of the contact with Peterson. The
record on appeal demonstrates that the district court considered the victim’s involvement when
pronouncing its sentence.    Therefore, Peterson has not shown prejudice by the absence of
telephone records in his appellate record.
B.     Revocation of Probation
       In State v. Chavez, 134 Idaho 308, 1 P.3d 809 (Ct. App. 2000), we stated:
               Idaho Code § 20-222 authorizes the revocation of probation at any time if
       the probationer violates any condition of the probation. Hence, once a violation
       has been found, the district court must determine whether it is of such seriousness
       as to warrant revoking the probation. [State v. Adams, 115 Idaho 1053, 1054, 772
       P.2d 260, 261 (Ct. App. 1989).] In making this discretionary decision, the trial
       court must examine whether the probation is achieving the goal of rehabilitation
       and whether continuation of the probation is consistent with the protection of
       society. [State v. Jones, 123 Idaho 315, 318, 847 P.2d 1176, 1179 (Ct. App.
       1993)]; State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988).
       The trial court’s decision to revoke probation will not be disturbed on appeal
       absent an abuse of discretion. State v. Beckett, 122 Idaho 324, 325-26, 834 P.2d
       326, 327-28 (Ct. App. 1992); State v. Corder, 115 Idaho 1137, 1138, 772 P.2d
       1231, 1232 (Ct. App. 1989).

Chavez, 134 Idaho at 312, 1 P.3d at 813. When a trial court’s discretionary decision is reviewed
on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the
lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted
within the boundaries of such discretion and consistently with any legal standards applicable to
the specific choices before it; and (3) whether the lower court reached its decision by an exercise
of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       In the instant case, Peterson claims that the district court’s decision to revoke his
probation was an abuse of discretion because the district court did not sufficiently consider the
following: (1) Peterson’s mental health condition; (2) Peterson’s acknowledgment of guilt;
(3) the victim’s instigation and willing participation in the contacts; (4) Peterson’s support
network; and (5) Peterson’s satisfactory performance in all other regards to his probation.



                                                5
        The record demonstrates that the district court considered Peterson’s mental health
condition and his acknowledgment of guilt. The district court also heard testimony regarding the
victim’s involvement in the contacts, the support Peterson has received from his employer, and
his potential to be successful in mental health court. Additionally, the district court considered
other “mitigating and aggravating factors and the objectives of protecting society and achieving
deterrence, rehabilitation, and retribution or punishment.” Further, the district court noted that
Peterson had previous opportunities to successfully complete probation but had failed. The
district court also noted that a condition of probation in Docket Nos. 39146 and 39147 stated:
“The defendant has had prior opportunities for probation. The defendant is advised that this is
his final opportunity at probation.” In all, Peterson has committed four probation violations
relating to Docket Nos. 39146 and 39147, and has committed seven violations of the no contact
order. From this, the district court concluded that probation should be revoked. We find no
abuse of discretion. 3
C.      Rule 35 Motions
        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. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). 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. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). 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. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680
P.2d 869, 871-73 (Ct. App. 1984).



3
        Alternatively, Peterson contends that the district court abused its discretion when it failed
to sua sponte reduce Peterson’s sentences pursuant to Rule 35. Rule 35 provides that “[t]he court
may also reduce a sentence upon revocation of probation. . . .” In conducting our review, we
consider the entire record and apply the same criteria used for determining the reasonableness of
the original sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v.
Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984). For the reasons set forth
above, we determine that the district court did not abuse its discretion when it executed
Peterson’s sentence without reduction.

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       In Docket Nos. 39146 and 39147, Peterson filed a Rule 35 motion with the district court
and provided the court with additional information that was not available to the court at the time
of his sentencing.    This information included documentation indicating that Peterson had
participated in and graduated from a number of different programs, including “A New Direction”
and the “F.A.T.H.E.R.S.” parenting program. The district court denied the motion, finding that
Peterson had numerous opportunities to reform his behavior and that his sentence would ensure
that he “will not cause any harm to society and deter him in the future from flouting the law.”
Based upon our review of the record and the new information provided to the district court, we
cannot say that the district court abused its discretion in denying Peterson’s Rule 35 motion in
Docket Nos. 39146 and 39147.
       In Docket No. 39783, Peterson filed a Rule 35 motion with the district court and provided
the court with a letter reminding the court that the violative contact with the victim was mutual.
Peterson provided no new or additional information to the district court. The maximum sentence
for felony violation of a no contact order, pursuant to I.C. § 18-920, is five years imprisonment.
The district court considered the objectives of sentencing and considered Peterson’s past
disregard of court orders when making its determination. The district court properly sentenced
Peterson within the appropriate statutory limits. Therefore, we determine the district court did
not abuse its discretion when it denied Peterson’s Rule 35 motion in Docket No. 39783.
                                               III.
                                        CONCLUSION
       Peterson has failed to show that his rights of due process were violated. Additionally, the
district courts did not abuse their discretion in revoking Peterson’s probation without sentence
reduction and in denying his Rule 35 motions. Therefore, the district courts’ orders revoking
probation and ordering execution of his sentences without modification and denying Peterson’s
Rule 35 motions are affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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