               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                   Docket Nos. 40459/40460

STATE OF IDAHO,                                  )     2013 Unpublished Opinion No. 695
                                                 )
       Plaintiff-Respondent,                     )     Filed: October 3, 2013
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
TREVA DAWN IRVING, aka HERREN,                   )     THIS IS AN UNPUBLISHED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. Deborah A. Bail, District Judge.

       Order revoking probation and requiring execution of unified seven-year sentence
       with two-year determinate term for driving under the influence, affirmed; order
       revoking probation and requiring execution of concurrent unified eight-year
       sentence with two and one-half-years determinate term for grand theft, affirmed;
       order denying I.C.R. 35 motion, affirmed.

       Stephen D. Thompson, Ketchum, 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
       In these consolidated appeals, Treva Dawn Irving pled guilty to driving under the
influence (docket number 40459). Idaho Code §§ 18-8004, 18-8005(5). The district court
imposed a unified seven-year sentence with a two-year determinate term, but suspended the
sentence and placed Irving on probation.       Subsequently, Irving was found to have violated
several terms of her probation, resulting in her pleading guilty to grand theft (docket number
40460). I.C. §§ 18-2403(1), 18-2407(1)(b). The district court imposed a concurrent unified
sentence of eight years with two and one-half years determinate, and retained jurisdiction in both
the DUI and grand theft cases. Following the period of retained jurisdiction, the district court

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suspended both of her sentences and reinstated probation. Subsequently, Irving admitted to
violating several terms of her probation, and the district court executed the suspended sentences.
Irving timely filed Idaho Criminal Rule 35 motions requesting a reduction in her sentences,
which the district court denied.    Irving appeals, asserting that the district court abused its
discretion by revoking her probation, by imposing excessive sentences, and by denying her
Rule 35 motions.
       It is within the trial court’s discretion to revoke probation if any of the terms and
conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122
Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772
P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App.
1988). In determining whether to revoke probation, a court must examine whether the probation
is achieving the goal of rehabilitation and consistent with the protection of society. State v.
Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834
P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation
has been established, order that the suspended sentence be executed or, in the alternative, the
court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at
325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989).
The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158,
162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal
only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834
P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the
conduct underlying the trial court’s decision to revoke probation. State v. Morgan, 153 Idaho
618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the
record before the trial court that are properly made part of the record on appeal and are relevant
to the defendant’s contention that the trial court should have reduced the sentence sua sponte
upon revocation of probation. Id.
       Sentencing is also a matter for the trial court’s discretion. Both our standard of review
and the factors to be considered in evaluating the reasonableness of a sentence are well
established and need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822
P.2d 1011, 1014-15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-
73 (Ct. App. 1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).


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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).
       When we review a sentence that is ordered into execution following a period of
probation, we will examine the entire record encompassing events before and after the original
judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our
review upon the facts existing when the sentence was imposed as well as events occurring
between the original sentencing and the revocation of the probation. Id.
       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). An appeal from the
denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent
the presentation of new information. Id. Because no new or additional information in support of
Irving’s Rule 35 motions were presented, the district court did not abuse its discretion.
       Applying the foregoing standards, and having reviewed the records in these cases, we
cannot say that the district court abused its discretion either in revoking probation or in ordering
execution of Irving’s original sentences without modification. Therefore, the orders revoking
probation and directing execution of Irving’s previously suspended sentences, and the orders
denying I.C.R. 35 motions are affirmed.




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