               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39961

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 700
                                                  )
       Plaintiff-Respondent,                      )     Filed: October 4, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
KEVIN ALLEN BOYCE,                                )     THIS IS AN UNPUBLISHED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.

       Order revoking probation and requiring execution of unified ten-year sentence
       with three-year determinate term for burglary, affirmed; order denying Rule 35
       motion, affirmed.

       Stephen D. Thompson, Ketchum, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

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

PER CURIAM
       Kevin Allen Boyce pled guilty to burglary. Idaho Code § 18-1401, 18-204. The district
court sentenced Boyce to a unified term of ten years, with a minimum period of confinement of
three years and retained jurisdiction. After the period of retained jurisdiction, the district court
suspended the sentence and placed Boyce on probation for a period of five years. Boyce
subsequently admitted to violating the conditions of his probation and the district court revoked
probation and executed the previously imposed sentence. Boyce appeals, asserting that the
district court abused its discretion by revoking probation, by imposing an excessive sentence,
and by denying his Idaho Criminal Rule 35 motion. Boyce also asserts that the Idaho Supreme




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Court denied him due process and equal protection by denying both his motion and renewed
motion to augment the record on appeal.
       Boyce asks this Court to hold that the Idaho Supreme Court deprived him of due process
and equal protection when it denied 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.
       Boyce has not filed with this Court a 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 motions to the Supreme Court. In essence, Boyce asks us to
determine that the Idaho Supreme Court violated constitutional law by denying his motions. As
this is beyond the scope of our authority, we will not address the issue further.
       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


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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. Morgan, 153 Idaho at 621, 288
P.3d at 838. 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.
       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. 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. Morgan, 153 Idaho at 621, 288 P.3d at
838.
       Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the 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).
       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


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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
Boyce’s Rule 35 motion was presented, the district court did not abuse its discretion.
       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, in ordering execution
of Boyce’s original sentence without modification, or in denying his Rule 35 motion. Therefore,
the order revoking probation and directing execution of Boyce’s previously suspended sentence
and the order denying his Rule 35 motion are affirmed.




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