               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 47287

STATE OF IDAHO,                                 )
                                                ) Filed: May 12, 2020
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
MIGUEL SOLANO,                                  )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. George A. Southworth, District Judge.

       Order denying I.C.R. 35 motion for correction of an illegal sentence and for
       reduction of sentence, affirmed.

       Parmenter Rivera, LLP; Nathan D. Rivera, Blackfoot, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Miguel Solano appeals from the district court’s order denying his I.C.R. 35 motion to
correct an illegal sentence and for a reduction of his sentence. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Solano and his girlfriend brought their four-month-old child to the emergency room at a
local hospital and reported that the child had been fussy all day and was not using his right hand.
Medical tests revealed that the child had two fractured ribs and a fractured skull, along with
evidence of older fractures to the child’s ribs and legs. Doctors suspected the injuries were
caused by shaking, slamming, throwing, crushing, or blunt force trauma.           The age of the
fractures suggested the child had suffered injuries at different times. When confronted with the



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injuries, Solano claimed that the recent rib and skull fractures occurred when he had dropped the
child in the shower and that the older leg injuries occurred when he became frustrated and
“jerked” the child’s legs during a diaper change.
       The State charged Solano with injury to a child and a sentencing enhancement for
causing great bodily injury. Ultimately, Solano entered an Alford 1 plea to injury to a child.
I.C. § 18-1501(1).    In exchange for Solano’s plea, the State dismissed the sentencing
enhancement. The district court sentenced Solano to a unified term of five years, with a
minimum period of confinement of two years. The district court then suspended Solano’s
sentence and placed him on probation for four years. As a condition of probation, Solano was
ordered to serve 180 days in the county jail along with 90 days of discretionary jail time.
Subsequently, Solano filed a motion pursuant to I.C.R. 35, claiming the district court imposed an
illegal sentence and seeking a reduction of his sentence. The district court denied Solano’s
motion. Solano appeals.
                                                II.
                                  STANDARD OF REVIEW
       Pursuant to I.C.R. 35, the district court may correct an illegal sentence at any time. In an
appeal from the denial of a motion under I.C.R. 35 to correct an illegal sentence, the question of
whether the sentence imposed is illegal is a question of law freely reviewable by the appellate
court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993).
       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 an I.C.R. 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 an I.C.R. 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).


1
       See North Carolina v. Alford, 400 U.S. 25 (1970).


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                                                III.
                                            ANALYSIS
       Solano raises two issues on appeal. First, Solano argues that the district court erred in
denying his I.C.R. 35 motion because his sentence is illegal. Second, Solano argues that the
district court abused its discretion in denying his motion for reduction of sentence by failing to
give proper consideration to the immigration consequences of his sentence. The State responds
that Solano’s sentence is lawful and that he has failed to show the district court was unaware of
and did not consider the potential immigration consequences Solano faced at the time of
sentencing. We hold that Solano has failed to show that his sentence is illegal or that the district
court abused its discretion in denying his motion for reduction of sentence.
A.     Legality of Sentence
       Although Solano acknowledges that the imposition of a term of confinement in jail as a
condition of probation is lawful when judgment is withheld, he argues that such a condition is
unlawful when the district court enters judgment but suspends execution of the judgment as the
district court did in this case. We disagree.
       Idaho Code Section 19-2601 authorizes a trial court to suspend execution of the judgment
and place the defendant on probation under such terms and conditions as it deems necessary and
appropriate. The Idaho Supreme Court has recognized that trial courts may impose a period of
confinement in jail as a condition of probation. See State v. Wagenius, 99 Idaho 273, 279, 581
P.2d 319, 325 (1978).      Moreover, although I.C. § 19-2601 neither expressly authorizes nor
prohibits the imposition of jail confinement as a condition of probation in the suspended sentence
context, other code provisions demonstrate that the Idaho Legislature contemplated such. Under
I.C. § 19-2603, a probationer “shall receive credit for time served . . . for any time served as a
condition of probation under the withheld judgment or suspended sentence.”             Idaho Code
Section 18-309(2) contains a similar directive. 2 These code provisions not only demonstrate the


2
        Specifically, I.C. § 18-309(2) provides:
              In computing the term of imprisonment when . . . sentence has been
       suspended and is later imposed, the person against whom the judgment . . . is
       imposed shall receive credit in the judgment for any period of incarceration

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Idaho Legislature’s implicit authorization of the imposition of jail confinement as a condition of
probation when a sentence is suspended, but they also prevent probationers from suffering
double punishment if their probation is revoked and a prison term is imposed.
       Solano also argues that his sentence is illegal because it is comprised of both the
suspended prison term and the period of confinement in jail, which he contends is contrary to
I.C. § 18-1501(1). Idaho Code Section 18-1501(1) provides that injury to a child as defined
therein is “punishable by imprisonment in the county jail not exceeding one (1) year, or in the
state prison for not less than one (1) year nor more than ten (10) years.” Solano misunderstands
the nature of the sentence imposed by the district court. The sentence imposed by the district
court was a unified term of five years, with an indeterminate two-year term. That sentence was
suspended. The 180-day jail term ordered by the district court was a condition of probation, not
a separate sentence. Thus, Solano’s assertion that his sentence illegally imposed a jail term and a
term of imprisonment fails.
       The district court’s sentence and its order for a period of confinement in jail as a
condition of probation was lawful. Solano has therefore failed to show the district court erred in
denying his I.C.R. 35 motion.
B.     Request for Leniency
       Solano also argues that the district court abused its discretion in denying his I.C.R. 35
motion for reduction of sentence by failing to properly consider the immigration consequences of
the sentence. According to Solano, he is not a United States citizen and the length of his
sentence makes his crime an “aggravated felony” under federal law, rendering him ineligible for
certain relief from deportation. Solano contends that the district court failed to take proper
consideration of these immigration factors when denying his motion for a reduction of sentence.
       Solano’s I.C.R. 35 motion sought a sentence reduction that would eliminate his
suspended prison term. 3 Solano supported his request for leniency with a brief and notarized




      served as a condition of probation under the original withheld or suspended
      judgment.
3
      Solano’s implicit argument appears to be that he would suffer no adverse immigration
consequences had he been sentenced to less than one year of incarceration.

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letters of support from relatives and his girlfriend explaining the immigration consequences of
his suspended sentence. After reviewing the presentence investigation report, Solano’s briefing
and the sentencing hearing, the district court denied Solano’s motion for a sentence reduction,
concluding that Solano received an appropriate sentence in light of his relevant characteristics
and applicable Idaho case law.
        The effect a sentence may have on a defendant’s immigration status is an appropriate
consideration for a trial court in fashioning a sentence or considering I.C.R. 35 relief. State v.
Tinoco-Perez, 145 Idaho 400, 402, 179 P.3d 363, 365 (Ct. App. 2008). Solano’s I.C.R. 35
motion for reduction of sentence and the letters from his family and girlfriend outlined the
immigration consequences facing Solano due to his sentence. In considering Solano’s request
for leniency, the district court stated:
        [T]he Court denies Solano’s request for leniency. The Court reviewed the facts
        and circumstances of the case. In light of the well-recognized objectives of
        criminal punishment, the Court views his sentence as reasonable under all
        circumstances in this case.
                The Court also reviewed the pre-sentence investigation reports, the
        parties’ briefing, and the sentencing hearing[ 4]. The court has considered--as it
        did at sentencing--Solano’s characteristics relevant to its decision to issue the
        sentence imposed. In light of all applicable considerations set forth in Idaho
        statutes and case law, the Court concludes that the sentence imposed was
        appropriate at the time of sentencing, and remains so as of the date of this Order.
        Although the immigration consequences of Solano’s sentence warranted consideration,
we cannot say that the district court abused its discretion in concluding that the immigration
consequences of Solano’s sentence did not warrant a reduction, particularly given the nature of
the offense. Solano has failed to show error in the denial of his request for leniency.




4
       It is unclear what the district court is referring to in terms of reviewing the sentencing
hearing. To the extent the district court reviewed a recording or a transcript of that hearing,
neither is included in the record on appeal. Portions of a transcript missing on appeal are
presumed to support the actions of the district court. State v. Repici, 122 Idaho 538, 541, 835
P.2d 1349, 1352 (Ct. App. 1992).




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                                               IV.
                                         CONCLUSION
       The district court did not impose an illegal sentence by sentencing Solano to a suspended
prison term and imposing a period of confinement in the county jail as a probation condition.
Additionally, Solano has failed to show the district court abused its discretion in denying
Solano’s request for a sentence reduction. Thus, Solano has failed to show that the district court
erred, and the order denying Solano’s I.C.R. 35 motion for correction of an illegal sentence and
for reduction of his sentence is affirmed.
       Chief Judge HUSKEY and Judge BRAILSFORD, CONCUR.




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