               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41327

STATE OF IDAHO,                                 )     2014 Unpublished Opinion No. 592
                                                )
       Plaintiff-Respondent,                    )     Filed: June 25, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
KENNETH JAY WHITLEY,                            )     THIS IS AN UNPUBLISHED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. Timothy L. Hansen, District Judge.

       Order revoking probation and executing underlying sentence, affirmed; order
       denying Idaho Criminal Rule 35 motion for reduction of sentence, 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 GUTIERREZ, Chief Judge; GRATTON, Judge;
                                and MELANSON, Judge

PER CURIAM
       Kenneth Jay Whitley pled guilty to conspiracy to commit robbery, Idaho Code
§§ 18-1701, 18-6501. The district court imposed a unified sentence of fifteen years, with five
years determinate, and retained jurisdiction.   Upon review of Whitley’s period of retained
jurisdiction, the district court suspended the sentence and placed Whitley on probation.
Subsequently, Whitley admitted to violating terms of his probation. The district court revoked
probation, executed the underlying sentence, and again retained jurisdiction. After a period of
retained jurisdiction, the district court suspended the sentence and placed Whitley back on
probation. Whitley later admitted to violating terms of his probation. At the probation violation
disposition hearing, Whitley orally moved for a reduction of his sentence under Idaho Criminal


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Rule 35. The district court revoked probation, executed the underlying sentence, and denied
Whitley’s Rule 35 motion.
       After filing this appeal, and before assignment to this Court, Whitley filed a motion to
augment the record with additional transcripts. The State objected and the Idaho Supreme Court
entered an order denying Whitley’s motion.
       On appeal Whitley argues that the Idaho Supreme Court denied him due process, equal
protection, and effective assistance of counsel by denying his motion to augment the record.
Whitley also contends that the district court abused its discretion by revoking probation and
denying his Rule 35 motion for a sentence reduction.
A.     Denial of Motion to Augment Record
       Whitley 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.
       Whitley 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,
Whitley asks us to determine that the Idaho Supreme Court violated constitutional law by
denying his motion.




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       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. Whitley 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 Whitley’s attempt to distinguish his case from
Morgan, based on his challenge to the length of the sentence, because it still falls within the
challenge to the Idaho Supreme Court’s denial of the motion to augment.
B.     Revocation of Probation and Denial of Rule 35 Motion
       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). 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. Morgan, 153 Idaho at 621, 288 P.3d at 838. Thus, this Court will consider
the elements of the record before the trial court relevant to the revocation of probation issues that
are properly made part of the record on appeal. Id. Applying the foregoing standards, and
having reviewed the record in this case, we cannot say that the district court abused its discretion
in revoking probation. Therefore, the order revoking probation and executing Whitley’s
underlying sentence is affirmed.




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       A motion for reduction of sentence under Rule 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 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). Upon review of the
record, including any new information submitted with Whitley’s Rule 35 motion, we conclude
no abuse of discretion has been shown. Therefore, the district court’s order denying Whitley’s
Rule 35 motion is affirmed.




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