               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41218

STATE OF IDAHO,                                  )      2014 Unpublished Opinion No. 513
                                                 )
       Plaintiff-Respondent,                     )      Filed: May 22, 2014
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
STEVEN RAY SHEETS, JR.,                          )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Order revoking probation and requiring execution of unified seven-year sentence,
       with two-year determinate term, for burglary, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

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

PER CURIAM
       Steven Ray Sheets, Jr. pled guilty to burglary. I.C. § 18-1401. The district court imposed
a unified seven-year sentence, with a three-year determinate term, but suspended the sentence
and placed Sheets on probation. After admitting to violating the terms of his probation, the
district court revoked probation, ordered execution of the original sentence, but after a period of
retained jurisdiction, suspended the sentence and again placed Sheets on probation.
Subsequently, Sheets admitted to violating the terms of the probation, and the district court
consequently revoked probation and ordered execution of Sheets’s sentence. The district court,
however, reduced Sheets’s sentence to a unified term of seven years, with a minimum period of
confinement of two years. Sheets filed an I.C.R. 35 motion for further reduction of his sentence,


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which the district court denied. Sheets appeals, contending that the district court abused its
discretion in revoking probation, that the sentence is excessive, that the district court should have
further sua sponte reduced the sentence, and that his due process rights were violated when the
Idaho Supreme Court denied his motion to augment the record on appeal.
A.     Denial of Motion to Augment Record
       Sheets asks this Court to hold that the Idaho Supreme Court deprived him of due process
equal protection, and effective assistance of counsel 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.
       Sheets has not filed with this Court a renewed 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 motion to the Supreme Court. In essence, Sheets asks us to
determine that the Idaho Supreme Court violated constitutional law by denying his motion.
       Although in Morgan we held a challenge to an Idaho Supreme Court denial of a motion
to augment the record is beyond the scope of our authority to review without a renewed motion,
Sheets asserts that this Court indeed has the authority to address the due process and equal
protection issues on appeal. He claims that such authority is implicit in the grant of authority
found in Idaho Appellate Rule 108. In fact, Sheets argues that a renewed motion to augment the
record cannot be made to this Court due to restrictions contained within Idaho Appellate Rules
30 and 110.


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       Rule 108(a) states that the “Court of Appeals shall hear and decide all cases assigned to it
by the Supreme Court.” The rule also contains a list of the types of cases that will not be
assigned to the Court of Appeals.        See I.A.R. 108(a).        Sheets asserts that, because the
constitutional issues raised in his appellant’s brief do not fall within the list of cases not to be
assigned to the Court of Appeals, this Court has the authority to address the issues. In other
words, the assignment of this case to the Court of Appeals functions as an implicit grant of
authority from the Supreme Court to review his claims about the constitutionality of the Supreme
Court’s decision to deny his request for additional transcripts.
       We recognize that Rule 108 requires this Court to decide all cases assigned by the
Supreme Court. However, we do not deem this grant of authority to be as broad as Sheets would
interpret it. Idaho Code Section 1-2402 states this Court is subordinate to the Idaho Supreme
Court. Idaho Code Section 1-2403 further states this Court is subject to administration and
supervision by the Supreme Court pursuant to Article 5, Section 2 of the Idaho Constitution.
When read in conjunction with I.C. § 1-2406(1), which closely mirrors the wording in Rule 108, 1
we must conclude, as we did in Morgan, that it is plainly beyond our scope of authority to review
a decision made by the Supreme Court before assignment of the case to this Court. We will not
address the issue of a denied motion to augment the record made before the Supreme Court
absent some basis for renewing the motion. As we have previously stated, this may occur via a
renewed motion with new evidence to support it filed with this Court, or the presentation of
refined, clarified, or expanded issues on appeal that demonstrates the need for additional records
or transcripts, in effect renewing the motion.
       This brings us to Sheets’s argument that a renewed motion to augment the record cannot
be made to this Court due to restrictions contained within Idaho Appellate Rules 30 and 110.
Rule 30(a) reads as follows:



1
       Idaho Code Section 1-2406(1) provides:

              Any provision of law to the contrary notwithstanding, the Idaho court of
       appeals shall have jurisdiction to hear and to decide all cases assigned to it by the
       Idaho supreme court; provided, that the supreme court shall not assign cases
       invoking the supreme court's original jurisdiction, nor appeals from imposition of
       sentences of capital punishment in criminal cases, nor appeals from the industrial
       commission, nor appeals from the public utilities commission.

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               Any party may move the Supreme Court to augment or delete from the
       settled reporter’s transcript or clerk’s or agency’s record. . . . Any party may
       within fourteen (14) days after service of the motion, file a brief or memorandum
       in opposition thereto. Unless otherwise expressly ordered by the Supreme Court
       such motion shall be determined without oral argument. The reporter’s transcript
       and clerk’s or agency’s record may also be augmented or portions deleted by
       stipulation of the parties and order of the Supreme Court. The filing of a motion
       to augment shall not suspend or stay the appellate process or the briefing
       schedule.
Additionally, Rule 110 provides:
               All motions, petitions, briefs and other appellate documents, other than the
       initial notice of appeal, shall be filed with the Clerk of the Supreme Court as
       required by the Idaho Appellate Rules with the court heading of the Supreme
       Court of the State of Idaho as provided by Rule 6. In the event of an assignment
       of a case to the Court of Appeals, the title of the proceeding and the identifying
       number thereof shall not be changed except that the Clerk of the Supreme Court
       may add additional letters or other notations to the case number so as to identify
       the assignment of the case. All case files shall be maintained in the office of the
       Clerk of the Supreme Court.
Sheets argues that these rules function to require all motions to be filed with the Supreme Court
and states he is not aware of any court rule which allows a party to an appeal to file a motion
directly with the Court of Appeals. Rather, he contends a filing of a renewed motion to augment
the record is expressly prohibited by the rules.
       We reject that interpretation of the rules because we recognize this to be contrary to the
grant of authority in Idaho Appellate Rule 101. Rule 101 provides that the “Idaho Appellate
Rules shall apply to all proceedings in the Court of Appeals as well as the following rules.” By
way of Rule 101, this Court also has authority to entertain motions to augment the record as
provided by Rule 30 after the case has been assigned to this Court. Moreover, if we were to
accept Sheets’s interpretation, it would result in a lack of authority of this Court to entertain any
motions. Idaho Appellate Rule 32(c), applicable to the Court of Appeals via Rule 101, allows
any other motions permitted under the rules, other than a motion to dismiss, to be made at any
time, before or after the case is set for oral argument. By way of that authority, this Court
routinely rules on motions such as motions for continuance, motions regarding briefing
(including motions to join briefing, file supplemental briefing, exceed the page limits, revise a
brief, request an extension of time to file a brief, or request permission to file a late brief),
motions to expedite the appeal, motions to withdraw as counsel, motions for a stay of
proceedings, motions to augment the record, renewed motions to augment the record, and

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motions to allow or to vacate oral argument. Under the Idaho Appellate Rules, we have the
authority to review and rule on motions made by a party after the case has been assigned to this
Court.
         In sum, we adhere to our conclusion in Morgan that reviewing the denial of a motion to
augment the record by the Supreme Court is beyond the scope of our authority. If a party files a
renewed motion after the case assignment to this Court and presents new information or
justification for the motion, we have the authority to rule on the motion.
         Sheets had an opportunity to present his constitutional arguments to the Supreme Court
and that Court denied his motion. He has no right to appeal that denial to the Idaho Court of
Appeals, and we have no authority to consider such an appeal. As such, we will not address
Sheets’s attempt to distinguish his case from Morgan, based on his appeal from the sentence,
because it still falls within the challenge to the Idaho Supreme Court’s denial of the motion to
augment.
B.       Probation Revocation and Review of Sentence
         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
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. State v. Morgan, 153 Idaho
618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the


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record before the trial court relevant to the revocation of probation issues which are properly
made part of the record on appeal. Id.
       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).
       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 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.
       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 or in ordering
execution of Sheets’s modified sentence without further modification. Therefore, the order
revoking probation and directing execution of Sheets’s previously suspended sentence is
affirmed.




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