               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42076

STATE OF IDAHO,                                )   2015 Unpublished Opinion No. 459
                                               )
       Plaintiff-Respondent,                   )   Filed: April 9, 2015
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
JONATHON HERNANDEZ,                            )   THIS IS AN UNPUBLISHED
                                               )   OPINION AND SHALL NOT
       Defendant-Appellant.                    )   BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Payette County. Hon. Thomas J. Ryan, District Judge.

       Judgment of conviction and unified life sentence, with minimum period of
       confinement of forty-five years, for second degree murder, affirmed; order
       denying I.C.R. 35 motion for reduction of sentence, affirmed.

       Deborah Whipple of Nevin, Benjamin, McKay & Bartlett, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Jonathon Hernandez appeals from his judgment of conviction and sentence for second
degree murder and the district court’s denial of his I.C.R. 35 motion for reduction of sentence.
For the reasons set forth below, we affirm.
       A woman was discovered murdered in her home. The victim died from multiple stab
wounds in the head, neck, and chest. The autopsy noted twenty-nine wounds, including one
from a knife that remained lodged through the woman’s head.
       Two days after the woman was discovered, Hernandez was arrested. In an interview with
the police, Hernandez said an acquaintance asked Hernandez to go with the acquaintance to his
aunt’s house to take credit cards and electronics. Hernandez said he went along, but waited
outside the house smoking a cigarette. According to Hernandez, the acquaintance went inside

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and came out very scared. Hernandez went inside the house and saw what the acquaintance had
done. Hernandez went to the victim and shook her. He looked for the weapon but could not find
it. Hernandez and the acquaintance then left with the victim’s car and electronics and used her
ATM card to get money.
       Hernandez was charged with first degree murder, grand theft by possession of stolen
property, and burglary. In a separate case, Hernandez was also charged with battery upon a law
enforcement officer in connection with events occurring while he was in pretrial custody. A plea
agreement was reached in which Hernandez pled guilty to second degree murder and all other
charges, including the battery, were dismissed. Both the state and Hernandez were left free to
argue for any appropriate sentence. The district court sentenced Hernandez to a unified term of
life in prison, with a minimum period of confinement of forty-five years. Hernandez filed a
Rule 35 motion for reduction of his sentence, which was denied. Hernandez appeals.
       Hernandez argues that his sentence is excessive. An appellate review of a sentence is
based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304
(Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is
unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825
P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be
unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324
(1982). A sentence of confinement is reasonable if it appears at the time of sentencing that
confinement is necessary to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation, or retribution applicable to a
given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (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). The
primary consideration is, and presumptively always will be, the good order and protection of
society. All other factors are, and must be, subservient to that end. State v. Hunnel, 125 Idaho
623, 873 P.2d 877 (1994); State v. Pederson, 124 Idaho 179, 857 P.2d 658 (Ct. App. 1993). The


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district court found that, based upon the reports from psychologists and other evidence of
Hernandez’s violent propensity, that Hernandez was a “high risk to the public.” Therefore,
according to the district court, it was necessary for Hernandez to be incarcerated for a period of
forty-five years to protect society. The district court properly weighed the Toohill factors, giving
due emphasis to the primary consideration of protecting society.
        Hernandez also argues his due process rights were violated because the district court
based his sentence on materially untrue information and false assumptions.             Specifically,
Hernandez claims the district court’s error is evidenced by comments the district court made
during sentencing. While weighing the Toohill factors, the district court expressed concerns that
Hernandez would not receive the level of rehabilitative treatment in prison that he needed; that
Hernandez would not be capable of being a productive member of society after his release from
prison; and that, if released at a young age, Hernandez would pose a risk of violence to society.
In State v. Dunn, 134 Idaho 165, 172, 997 P.2d 626, 633 (Ct. App. 2000), this Court stated:
       A judge may consider a broad range of information when fashioning an
       appropriate sentence. Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L.
       Ed. 1337 (1949); State v. Morgan, 109 Idaho 1040, 1042, 712 P.2d 741, 743 (Ct.
       App. 1985). A defendant is denied due process when the sentencing judge relies
       upon information that is materially untrue or when a judge makes materially false
       assumptions of fact. State v. Gawron, 124 Idaho 625, 627, 862 P.2d 317, 319 (Ct.
       App. 1993).

Hernandez’s guilty plea form established the facts upon which the district court relied--that
Hernandez was guilty of second degree murder by participating in events that led to the victim
being stabbed to death. The district court relied on information within the record and the
presentence investigation report. The district court’s comments were made in the context of
weighing deterrence, rehabilitation, punishment, and protection of society.        Ultimately, the
district court determined that, for the protection of society, it was necessary for Hernandez to be
incarcerated for a minimum term of forty-five years. Giving due deference to the district court’s
discretion, we hold that the district court did not err in sentencing Hernandez.
       Hernandez also argues that the district court erred in denying his Rule 35 motion. 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

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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). As discussed above, the district court did not abuse its discretion in
sentencing Hernandez. Thus, the district court did not err in denying Hernandez’s Rule 35
motion.
       After reviewing the record, we hold that the district court did not abuse its discretion in
sentencing Hernandez or in denying Hernandez’s Rule 35 motion. Accordingly, Hernandez’s
judgment of conviction and sentence and the district court’s denial of Hernandez’s Rule 35
motion are affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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