               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38485

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 406
                                                 )
       Plaintiff-Respondent,                     )     Filed: March 19, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
BRIDGETT LEE DELUCA,                             )     THIS IS AN UNPUBLISHED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 executing suspended sentence, affirmed; order
       denying I.C.R. 35 motion for reduction of sentence, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Bridgett Lee Deluca appeals from the district court’s order revoking her probation and
executing sentence and from the district court’s order denying her I.C.R. 35 motion for reduction
of sentence. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Deluca, who has a long history of methamphetamine addiction, pled guilty to felony
possession of a controlled substance, I.C. § 37-2732(c), and misdemeanor injury to a child, I.C. §
18-1501(1). A psychological evaluation was performed prior to sentencing at Deluca’s expense
and was submitted to the district court at Deluca’s request. Deluca was sentenced to a unified
term of seven years, with a minimum period of confinement of three years, for possession of a
controlled substance and a concurrent sentence of 120 days for injury to a child. The district
court retained jurisdiction. Following Deluca’s successful completion of the retained jurisdiction

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program, the district court suspended her sentence and placed her on probation for seven years.
Approximately seven months later, the state alleged Deluca violated her probation by using
methamphetamine, refusing to allow her probation officer to search her residence, and
associating with known felons.        Deluca admitted to violating her probation by using
methamphetamine and refusing to allow her probation officer to search her residence. Prior to
Deluca’s disposition hearing on the probation violation, her attorney requested the district court
order an updated mental health evaluation.       The district court denied the request, revoked
Deluca’s probation, and executed her original sentence. Subsequently, Deluca filed an I.C.R. 35
motion seeking reduction of her sentence, which the district court denied. Deluca appeals.
                                                II.
                                           ANALYSIS
       Deluca argues on appeal that the district court erred when it denied her request for an
updated psychological evaluation pursuant to I.C. § 19-2522(1) prior to disposition of her
probation violation. Deluca further asserts the district court abused its discretion when it failed
to order a mental health evaluation pursuant to I.C. § 19-2524 prior to disposition of her
probation violation. Deluca also argues the district court abused its discretion when it revoked
her probation and imposed sentence. Finally, Deluca contends that the district court abused its
discretion when it denied her Rule 35 motion to reduce her sentence.
A.     Psychological Evaluation Under I.C. § 19-2522
       Deluca argues the district court erred when it denied her request for a psychological
evaluation pursuant to I.C. § 19-2522(1) prior to the disposition hearing on her probation
violation.   The determination whether to obtain a psychological evaluation lies within the
sentencing court’s discretion. I.C. § 19-2522(1); I.C.R. 32(d); State v. Jones, 132 Idaho 439,
442, 974 P.2d 85, 88 (Ct. App. 1999). The legal standards governing the court’s decision
whether to order a psychological evaluation and report are contained in I.C. § 19-2522. Pursuant
to I.C. § 19-2522(1), if there is reason to believe that the mental condition of the defendant will
be a significant factor at sentencing and for good cause shown, the sentencing court must appoint
a psychiatrist or licensed psychologist to examine and report upon the defendant’s mental
condition.
       Previous decisions indicate that, even if there is reason to believe the defendant’s mental
condition will be a significant factor at sentencing, the court nonetheless may deny a request for


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a new evaluation if the information contained in existing reports satisfies the requirements of I.C.
§ 19-2522(3). State v. McFarland, 125 Idaho 876, 879, 876 P.2d 158, 161 (Ct. App. 1994).
Accordingly, we will uphold the district court’s failure to order a psychological evaluation if the
record supports a finding that there was no reason to believe a defendant’s mental condition
would be a significant factor at sentencing or if the information already before the court
adequately meets the requirements of I.C. § 19-2522(3). McFarland, 125 Idaho at 879, 876 P.2d
at 161.
          Here, a psychological evaluation was performed at Deluca’s expense prior to sentencing
and was incorporated into her presentence investigation report (PSI) at her request.           This
evaluation was not prepared by court order pursuant to I.C. § 19-2522 but was prepared by a
licensed psychologist. The evaluation did not comport completely with the requirements of I.C.
§ 19-2522(3), but there was no objection to the report at the time of sentencing and no suggestion
that the district court should have required more information or ordered an additional report. 1
Deluca’s Axis I diagnoses were alcohol dependence, methamphetamine abuse, bipolar disorder,
bulimia nervosa, and attention deficit hyperactivity disorder.        Her Axis II diagnosis was
borderline personality disorder. Plainly, the district court considered Deluca’s mental health
issues in ordering, as a term of her probation, that she continue intensive outpatient treatment for
her dual diagnoses.
           Deluca argues, however, that the district court erred in denying her request for an
updated psychological evaluation because her mental health status had changed during the year
after she was sentenced, and her mental health would be a significant factor at the disposition of
her probation violation. In support of this claim, Deluca cites to State v. Izaguirre, 145 Idaho
820, 186 P.3d 676 (Ct. App. 2008). Izaguirre was convicted of second degree murder at the age
of twenty. Izaguirre did not request a psychological evaluation prior to sentencing and one was
not ordered sua sponte by the trial court. He was sentenced to a term of life imprisonment, with
a minimum period of confinement of sixty years. Izaguirre filed an I.C.R. 35 motion for
reduction of sentence and requested a psychological evaluation be performed prior to the hearing
on his Rule 35 motion. In support of his request for a psychological evaluation, Izaguirre


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        The report did not address the relative risks and benefits of treatment or nontreatment nor
did it provide a consideration of the risks of danger which Deluca might create for the public at
large. I.C. §§ 19-2522(3)(e) and (f).

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submitted the affidavit of a psychologist and several scholarly articles that asserted psychological
changes occurring in a person’s teens and twenties act to reduce the risk they will become repeat
offenders. The district court denied Izaguirre’s request for a psychological evaluation prior to
the disposition of his Rule 35 motion. On appeal, this Court reversed, holding that, where there
had been no psychological evaluation prior to sentencing and a psychologist’s affidavit
submitted in support of the motion demonstrated there was reason to suspect psychological
abnormalities would warrant consideration by the court, the district court should have granted the
motion for a psychological evaluation prior to the hearing on Izaguirre’s Rule 35 motion.
Izaguirre, 145 Idaho at 823-24, 186 P.3d at 679-80.
       Deluca argues that the holding in Izaguirre, which required a trial court to order a
psychological evaluation prior to deciding a Rule 35 motion, should be extended to her request
for a psychological evaluation prior to a probation violation disposition hearing because
probation violation dispositions are analogous to Rule 35 hearings. We disagree.
       First, I.C. § 19-2522 mandates a psychological evaluation in certain circumstances only
for purposes of informing the trial court’s initial sentencing decision; by its plain language, the
statute has no application to a hearing on a probation violation. Contrary to Deluca’s argument,
we did not extend the Section 19-2522 requirement to Rule 35 proceedings in Izaguirre. In fact,
we specifically stated that “there is no claim of a direct violation of I.C. § 19-2522.” Izaguirre,
145 Idaho at 823, 186 P.3d at 679. Instead, we examined the indigent defendant’s request for an
evaluation to support his Rule 35 motion as a matter committed to the trial court’s discretion.
We held only that, where no psychological evaluation had been conducted before sentencing,
and where an affidavit of a neuropsychologist indicated that the defendant’s personal history and
behavior led the psychologist to suspect that neurocognitive abnormalities may have affected the
defendant’s past behavior and would affect the risk of future aggression and that continued
maturation of the defendant’s brain could have a positive impact on his behavior, the district
court abused its discretion by refusing to order such an evaluation before it ruled on the young
defendant’s motion to reduce his unified life sentence, with a minimum period of confinement of
sixty years.
       Because the mandate of I.C. § 19-2522 does not apply to probation violation proceedings,
the district court here did not err in denying Deluca’s request for an additional psychological
evaluation pursuant to that statute prior to the disposition of her probation violation.


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B.     Mental Evaluation Under I.C. § 19-2524
       Deluca also argues the district court abused its discretion when it failed to sua sponte
order a mental health evaluation examination under I.C. § 19-2524 prior to disposition of her
probation violation. Idaho Code Section 19-2524 provides that, when a defendant has been
found to violate a condition of probation, the court, prior to the hearing on revocation of
probation, may order a defendant to undergo a mental health examination.              The statute
specifically provides that a court “may” order the defendant to submit to a mental health
examination. The word “may” is permissive and denotes an exercise of discretion. See State v.
Harbaugh, 123 Idaho 835, 837, 853 P.2d 580, 582 (1993). Thus, we will review the lower
court’s decision to order a mental health examination under an abuse of discretion standard.
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 denying Deluca’s request for an updated mental health evaluation, the district court
noted that, upon its review of the file, there was no basis for an updated mental health report.
The district court had extensive information regarding Deluca’s mental health at the time of the
probation violation hearing. In addition, Deluca failed to present additional evidence which
would indicate her mental health status had changed or that would show an additional mental
health evaluation was warranted. The only new information before the district court was that
Deluca’s probation officer had suggested that she might benefit from a new evaluation.
Therefore, we hold that the record demonstrates the district court did not abuse its discretion in
failing to grant Deluca’s request for an updated mental health evaluation pursuant to I.C. § 19-
2524 prior to disposition of Deluca’s probation violation.
C.     Revocation of Probation
       Deluca argues the district court abused its discretion when it revoked her probation and
imposed sentence. 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


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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 is 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 I.C.R. 35 to reduce the sentence. Beckett, 122 Idaho at 326, 834 P.2d at
328; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). A decision to
revoke probation will be disturbed on appeal only upon a showing the trial court abused its
discretion. 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. Hedger, 115 Idaho
at 600, 768 P.2d at 1333.
       The record demonstrates that Deluca had an extensive criminal history, including
multiple felonies and a federal conviction for distribution of methamphetamine. Despite this
criminal history, the district court retained jurisdiction and, after Deluca’s completion of the rider
program, placed Deluca on probation. Within seven months, Deluca admitted to violating her
probation by using methamphetamine on multiple occasions and refusing to cooperate with her
probation officer’s request to search her residence. The record demonstrates that Deluca had
attended counseling and drug rehabilitation programs in the past, but these resources failed to
change her behavior. In light of Deluca’s conduct during the probationary period and given her
criminal history, it was reasonable for the district court to find she was unsuitable as a candidate
for continuing on probation because probation was not achieving its rehabilitative purpose and
was not consistent with the protection of society. Therefore, we hold the district court did not
abuse its discretion when it revoked Deluca’s probation and executed her previously suspended
sentence.




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D.     Denial of Rule 35 Motion
       Finally, Deluca contends that the district court abused its discretion when it denied her
Rule 35 motion for reduction of sentence. 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). A lower court’s decision to grant or deny a
Rule 35 motion will not be disturbed on appeal in the absence of an abuse of discretion. State v.
Villarreal, 126 Idaho 277, 281, 882 P.2d 444, 448 (Ct. App. 1994).
       In support of her Rule 35 motion, Deluca presented letters from friends and family
discussing her lengthy history of addiction and mental health issues. The letters did not present
new or additional evidence sufficient to demonstrate Deluca’s sentence was excessive in light of
her past criminal record and poor performance on probation. Therefore, Deluca has failed to
show that the district court abused its discretion in denying her Rule 35 motion for reduction of
sentence.
                                               III.
                                        CONCLUSION
       The district court did not err in denying Deluca’s request for a psychological evaluation
pursuant to I.C. § 19-2522(1) or I.C. § 19-2524 prior to the hearing on Deluca’s probation
violation. In addition, the district court did not abuse its discretion when it revoked Deluca’s
probation and executed her previously suspended sentence and denied her Rule 35 motion to
reduce her sentence. Accordingly, the district court’s order revoking Deluca’s probation and
executing her previously suspended sentence and its order denying her Rule 35 motion are
affirmed.
       Judge LANSING and Judge GUTIERREZ, CONCUR.




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