               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39645

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 444
                                                  )
       Plaintiff-Respondent,                      )     Filed: April 12, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
MICHAEL DEWAYNE WEATHERS,                         )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. David C. Nye, District Judge.

       Order revoking probation and requiring execution of unified ten-year sentence
       with three-year determinate term for sexual abuse of a child under the age of
       sixteen years, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

                          Before LANSING, Judge; GRATTON, Judge;
                                   and MELANSON, Judge

PER CURIAM
       Michael Dewayne Weathers pled guilty to sexual abuse of a child under the age of
sixteen years. Idaho Code § 18-1506(1)(B). The district court imposed a unified ten-year
sentence with a three-year determinate term, but after a period of retained jurisdiction, suspended
the sentence and placed Weathers on probation for a period of ten years.             Subsequently,
Weathers admitted to violating several terms of the probation, and the district court consequently
revoked probation and ordered execution of the original sentence. Weathers appeals contending
that the district court abused its discretion in revoking probation and failing to sua sponte reduce




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his sentence. Weathers also asserts that the Idaho Supreme Court denied him due process and
equal protection when it only partially granted his motion to augment the record on appeal.
       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 relevant to the revocation of probation issues which are properly
made part of the record on appeal. 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).
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


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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.
           Weathers asks this Court to hold that the Idaho Supreme Court deprived him of due
process and equal protection when it only partially granted his motion to augment the record.
We do not, however, have the authority to review and, in effect, reverse an Idaho Supreme Court
decision on a motion made prior to assignment of the case to this Court on the ground that the
Supreme Court decision was contrary to the state or federal constitutions or other law. See State
v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an undertaking would
be tantamount to the Court of Appeals entertaining an appeal from an Idaho Supreme Court
decision and is plainly beyond the purview of this Court. Id. If a motion is renewed by the
movant and new information or a new or expanded basis for the motion is presented to this Court
that was not presented to the Supreme Court, we deem it within the authority of this Court to
evaluate and rule on the renewed motion in the exercise of our responsibility to address all
aspects of an appeal from the time of assignment to this Court. Id. Such may occur if the
appellant’s or respondent’s briefs have refined, clarified, or expanded issues on appeal in such a
way as to demonstrate the need for additional records or transcripts, or where new evidence is
presented to support a renewed motion. Id.
           Weathers has not filed with this Court a renewed motion to augment the record or
presented to this Court in his briefing any significant new facts or a new justification for
augmentation beyond that already advanced in his motion to the Supreme Court. In essence,
Weathers asks us to determine that the Idaho Supreme Court violated constitutional law by
denying his motion. As this is beyond the scope of our authority, we will not address the issue
further.
           Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either in revoking probation or in ordering
execution of Weathers’ original sentence without modification. Therefore, the order revoking
probation and directing execution of Weathers’ previously suspended sentence is affirmed.




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