               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 43625

STATE OF IDAHO,                               )     2017 Unpublished Opinion No. 328
                                              )
       Plaintiff-Respondent,                  )     Filed: January 25, 2017
                                              )
v.                                            )     Stephen W. Kenyon, Clerk
                                              )
ROBERT WESLEY TIBBITTS,                       )     THIS IS AN UNPUBLISHED
                                              )     OPINION AND SHALL NOT
       Defendant-Appellant.                   )     BE CITED AS AUTHORITY
                                              )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bingham County. Hon. Darren B. Simpson, District Judge.

       Orders denying Idaho Criminal Rule 35 motions for credit for time served and
       reduction of sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Robert Wesley Tibbitts appeals from the district court’s orders denying his Idaho
Criminal Rule 35 motions for credit for time served and reduction of sentence. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Tibbitts pled guilty to felony driving under the influence (DUI), Idaho Code Sections 18-
8004(1)(a) and 18-8005(9). The district court sentenced Tibbitts to ten years with seven years
determinate, but suspended the sentence and placed Tibbitts on probation. Tibbitts violated his
probation, and the court executed his sentence, crediting him with 121 days of presentence time
served and 67 days of time served resulting from the probation violation. The court retained
jurisdiction, and Tibbitts entered a retained jurisdiction program in the custody of the Idaho
Department of Correction (IDOC).

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       Tibbitts successfully completed the retained jurisdiction program, and the IDOC credited
him with 325 days of time served while he was in the program. The district court again
suspended Tibbitts’ sentence and placed him on probation.
       Tibbitts violated his probation a second time by driving under the influence and
committing a battery. In a separate case, Tibbitts was convicted for the DUI and battery. The
court in that case placed Tibbitts on probation and ordered him to participate in a domestic
violence program. At the probation violation hearing in the present case, Tibbitts’ trial attorney
informed the district court that the court in Tibbitts’ other case had ordered him to participate in
a domestic violence program.       The court in the present case executed Tibbitts’ sentence,
crediting him with seventy-five days of time served resulting from the second probation
violation.
        Tibbitts filed a Rule 35(b) motion for reduction of sentence in the present case, asking
the district court to allow him to participate in the domestic violence program. The court denied
Tibbitts’ motion.
       Tibbitts filed Rule 35(c) motions, asking the district court for credit for time served. The
court granted, in part and denied in part, these motions crediting Tibbitts with 5 days of time
served for incarceration that occurred between his release from the retained jurisdiction program
and placement on probation. In all, the court credited Tibbitts with 268 days of time served.
Tibbitts timely appeals.
                                                II.
                                           ANALYSIS
       Tibbitts asserts the district court erred in denying, in part, his Rule 35(c) motions for
credit for time served and abused its discretion in denying his Rule 35(b) motion for reduction of
sentence.
A.     Rule 35(c) Motions for Credit for Time Served
       Tibbitts argues the district court erred in denying, in part, his Rule 35(c) motions for
credit for time served. Tibbitts asserts the court failed to credit him with 330 days of time
served. Of these days, 325 were while he was in the retained jurisdiction program and 5 were
between his release from the retained jurisdiction program and placement on probation.
       “The question of whether a sentencing court has properly awarded credit for time served
on the facts of a particular case is a question of law, which is subject to free review by this

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Court.” State v. Denny, 157 Idaho 217, 219, 335 P.3d 62, 64 (Ct. App. 2014). Idaho Code
Section 18-309(1) provides for credit for time served “for any period of incarceration prior to
entry of judgment.” Idaho Code Section 19-2603 provides for “credit for time served from the
date of service of a [probation violation] warrant.”1 Thus, courts have jurisdiction to award
credit for any presentence incarceration and incarceration occurring after issuance of a probation
violation warrant. However, courts do not have jurisdiction to award credit for time served while
a defendant is in the custody of the IDOC for a retained jurisdiction program. See I.C. § 20-
209A (governing Board of Correction’s calculation of sentences); State v. Martin, 159 Idaho
860, 863-64, 367 P.3d 255, 258-59 (Ct. App. 2016).
       Tibbitts’ argument does not take into account the district court’s lack of jurisdiction to
award credit for time served while he was in the custody of the IDOC for his retained jurisdiction
program. The record shows that the court properly awarded credit for all time Tibbitts served
while the court had jurisdiction over him. Specifically, the record shows the court credited
Tibbitts with 121 days of presentence time served, 67 days of time served immediately after his
first probation violation, 75 days of time served immediately after his second probation violation,
and 5 days of time served for incarceration that occurred between his release from the retained
jurisdiction program and placement on probation. Further, the record shows that the IDOC
credited Tibbitts with all 325 days of time served while he was in the retained jurisdiction
program.2 Thus, Tibbitts received credit for all 330 days he complains about and his argument
fails. The district court did not err by failing to credit Tibbitts for time served while he was in
the retained jurisdiction program.
B.     Rule 35(b) Motion for Reduction of Sentence
       Tibbitts argues the district court abused its discretion in denying his Rule 35(b) motion
for reduction of sentence.     According to Tibbitts, the court should have allowed him to


1
       Idaho Code Sections 18-309 and 19-2603 were both amended after the district court’s
order revoking probation. However, we will use language from the current code sections
because the amendments do not affect the substance of the issues in this appeal.
2
        A prisoner challenging the IDOC’s interpretation, application, or calculation of his or her
sentence may seek relief by filing a writ of habeas corpus. State v. Martin, 159 Idaho 860, 865,
367 P.3d 255, 260 (Ct. App. 2016). Thus, Tibbitts may address any issues he has with the
IDOC’s interpretation, application, or calculation of his sentence by filing a petition for a writ of
habeas corpus.
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participate in the domestic violence program ordered by the court in his other case. Tibbitts
asserts the court in this case “fail[ed] to recognize the difference between” the domestic violence
program and other community-based treatment programs he participated in.              Although he
reoffended after completing the other programs, Tibbitts claims his outcome in the domestic
violence treatment program might have been different because this was his first domestic
violence offense, he does well in structured programs, and there is no indication he would have
failed.
          A motion for reduction of sentence under Rule 35(b) 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(b) 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(b) motion cannot be used as a vehicle to review the underlying sentence
absent the presentation of new information. Id. In conducting our review of the grant or denial
of a Rule 35(b) 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).
          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). 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).

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          In this case, Tibbitts failed to present any new information to support his Rule 35(b)
motion for reduction of sentence.        The district court learned of the order for Tibbitts to
participate in a domestic violence program at Tibbitts’ probation violation hearing. Thus, the
order for Tibbitts to participate in a domestic violence program was not new information
presented in Tibbitts’ Rule 35(b) motion for reduction of sentence.
          Moreover, in denying Tibbitts’ Rule 35(b) motion for reduction of sentence, the district
court properly focused on the primary sentencing objective of protection of society. The court
stated:
                  Tibbitts seeks leniency to participate in a new treatment program offered
          by Bonneville County. Given Tibbitts’ history, and the increasing seriousness of
          his criminal behavior during community-based treatment programs, Tibbitts’
          present ability to successfully complete a third community-based treatment
          program is doubtful. After two failed attempts at probation, and another incident
          of driving under the influence, society must be protected from Tibbitts’ apparent
          inability to control his criminal conduct in the community-setting. Therefore,
          incarceration is necessary. Tibbitts’ unwillingness to abide by the rules of his
          probation, and his failure to learn from retained jurisdiction, lead to the re-
          imposition of his original sentence.
The court correctly concluded that protecting society from Tibbitts’ criminal acts required
Tibbitts’ incarceration because community programs had failed to rehabilitate him. For the
foregoing reasons, the district court did not abuse its discretion in denying Tibbitts’ Rule 35(b)
motion for reduction of sentence.
                                                 III.
                                           CONCLUSION
          The district court did not err in denying Tibbitts credit for time served while he was in a
retained jurisdiction program and did not abuse its discretion in denying his Rule 35(b) motion
for reduction of sentence. The district court’s orders denying Tibbitts’ Rule 35 motions for
credit for time served and reduction of sentence are affirmed.
          Judge MELANSON and Judge HUSKEY CONCUR.




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