               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 35669

STATE OF IDAHO,                                 )     2010 Unpublished Opinion No. 580
                                                )
       Plaintiff-Respondent,                    )     Filed: August 5, 2010
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
GERALD DEAN LAY,                                )     THIS IS AN UNPUBLISHED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 directing execution of original sentence, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Gerald Dean Lay appeals the district court’s order revoking probation and directing
execution of his underlying sentence for felony aggravated assault, Idaho Code §§ 18-901(b), 18-
905(b). We affirm.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On March 3, 2003, Lay demanded that his girlfriend, B.W., give him $220. She refused
to give him the money and kept it beneath her bra. Lay used a knife to cut and rip her shirt and
bra off in order to take the money. Lay pled guilty to felony aggravated assault, I.C. §§ 18-
901(b), 18-905(b), the State dismissed the charge of felony robbery, I.C. §§ 18-6501, 18-6502,
and, pursuant to a binding Idaho Criminal Rule 11 plea agreement, the court sentenced Lay to a
unified sentence of five years with two years determinate, but suspended the sentence and placed
Lay on probation.



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       On December 1, 2007, Lay physically abused his wife, S.L., prompting his probation
officer to seek revocation of his probation. Also, on April 5, 2008, Lay was discovered living
with A.M., which was contrary to the terms of his probation. Lay admitted to violating the terms
of his probation. The district court revoked probation and reinstated the suspended sentence.
Lay appeals.
                                                 II.
                                          DISCUSSION
       Lay contends that he has been deprived of due process on appeal because the recording of
his sentencing hearing was destroyed, preventing him from presenting that evidence to this
Court. Alternatively, he claims that the district court abused its discretion by revoking his
probation.
       Where a defendant claims that his or her right to due process was violated, we defer to
the trial court’s findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho
712, 720, 23 P.3d 786, 794 (Ct. App. 2001). However, we freely review the application of
constitutional principles to those facts found. Id.
       On July 31, 2009, Lay filed a motion to suspend the briefing on appeal and augment the
record with the sentencing transcript, which the Supreme Court granted. On November 20,
2009, the Court withdrew the previous order and denied the motion to augment with the
sentencing transcript upon notification from the district court that the sentencing recording had
been destroyed.1 Lay asserts that, without the sentencing transcript, he has been deprived of a
full and fair opportunity to present his arguments on appeal and, thus, denied due process.
       A defendant in a criminal case has a due process right to a record on appeal that is
sufficient for adequate appellate review of the errors alleged regarding the proceedings below.



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         We note that Idaho Code § 1-1103 requires court reporters to correctly report all oral
proceedings and the testimony taken in all cases tried before the district court. “The reporter
shall file the stenographic records and reports made by him with the clerk of the district court of
the county in which such report was taken and was tried.” I.C. § 1-1104. Idaho Court
Administrative Rule 37 allows destroying recordings, tapes, and stenographic records after five
years from the date of the hearing. However, although not cited by Lay, Idaho Court
Administrative Rule 38(b) precludes destruction of court records while a defendant is
incarcerated or on probation. Since Lay was on probation, the recording should not have been
destroyed.


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State v. Strand, 137 Idaho 457, 462, 50 P.3d 472, 477 (2002). However, the inability to provide
a transcript of an oral proceeding below does not automatically mandate reversal. State v.
Polson, 92 Idaho 615, 620-21, 448 P.2d 229, 234-35 (1968). The lack of a complete transcript
must prejudice the defendant’s ability to pursue the appeal. Id. at 621, 448 P.2d at 235. In
support of his claim that the sentencing transcript is necessary for review of the trial court’s
decision to revoke probation, Lay contends that this Court’s decision in State v. Hanington, 148
Idaho 26, 218 P.3d 5 (Ct. App. 2009), requires a review of the entire record of proceedings in the
trial court up to and including the revocation of probation. Lay reads Hanington too broadly. As
stated in Hanington, in reviewing the propriety of a probation revocation, we will not arbitrarily
confine ourselves to only those facts which arise after sentencing to the time of the revocation of
probation. Id. at 30-31, 218 P.3d at 7-8. However, that does not mean that all proceedings in the
trial court up to and including sentencing are germane. The focus of the inquiry is the conduct
underlying the trial court’s decision to revoke probation. Thus, this Court will consider the
elements of the record before the trial court that are relevant to the revocation of probation issues
properly made part of the record on appeal.
       Lay asserts that the sentencing transcript was necessary because it contained his
allocution at the time of sentencing “and its potential impact on the propriety of his sentence or
upon the court’s determination to revoke probation.” First, Lay did not appeal the propriety of
his sentence and it is not before this Court. Second, Lay has failed to demonstrate, in any way,
how his allocution at the time of sentencing may have borne on the district court’s determination
to revoke probation. He has provided nothing relative to the content of his own allocution or
how it may relate to the decision to revoke probation. He has not shown that any of the
sentencing proceedings, other than the resultant sentence, were before the district court at the
time of its decision to revoke probation. Moreover, whatever the content of his allocution, it was
given at a sentencing proceeding where Lay agreed to the sentence he received, and presumably
was offered, in support of the binding Rule 11 plea agreement and the five-year sentence with
two-year determinate term agreed to therein. The inability to produce the sentencing transcript
has not been shown to prejudice Lay in the presentation of the appeal of the district court’s
decision to revoke probation, or to be a violation of his due process rights.
       Alternatively, Lay claims that the district court abused its discretion in revoking his
probation. It is within the trial court’s discretion to revoke probation if any of the terms and


                                                 3
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
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). 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.
        Sentencing is also a matter for the trial court’s discretion. Both our standard of review
and the factors to be considered in evaluating the reasonableness of a 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).
        As noted, when we review a sentence that is ordered into execution following a period of
probation, we will examine the record before the district court upon revocation of probation,
which record may include facts existing when the sentence was imposed as well as events
occurring between the original sentencing and the revocation of the probation. Hanington, 148
Idaho at 29, 218 P.3d at 8. Our inquiry is focused on the district court’s decision to revoke
probation and whether the district court, upon the record, abused its discretion in revoking
probation. Id. Applying these standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion.
                                                     III.
                                           CONCLUSION
        Lay has failed to demonstrate that the sentencing transcript was either germane or
material to the issues raised by the district court’s revocation of his probation reviewed on this


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appeal and, thus, was neither prejudiced nor denied due process by the inability to produce the
transcript. The district court did not abuse its discretion in revoking Lay’s probation. The
district court’s order revoking probation and directing execution of Lay’s previously suspended
sentence is affirmed.
       Judge GUTIERREZ and Judge MELANSON, CONCUR.




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