               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 40721

STATE OF IDAHO,                                 )     2014 Unpublished Opinion No. 531
                                                )
       Plaintiff-Respondent,                    )     Filed: May 30, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
GREGORY ALLYNN GENTRY,                          )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. David C. Nye, District Judge.

       Order revoking probation and executing unified sentence of five years, with three
       years determinate, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy,
       Deputy Appellate Public Defender, Boise, for appellant. Ben Patrick McGreevy
       argued.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent. Lori A. Fleming argued.
                 ________________________________________________
PERRY, Judge Pro Tem
       Gregory Allynn Gentry appeals from the district court’s order revoking his probation and
executing his suspended sentence. For the reasons that follow, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Gentry was incarcerated at the Bannock County Jail when he struck a jail deputy. A
criminal complaint was filed, alleging that Gentry committed battery on detention staff. Idaho
Code § 18-915. At a May 2012 hearing, the parties submitted a binding plea agreement and a
plea agreement questionnaire. During the hearing, Gentry pled guilty to the crime of battery on
detention staff and admitted to a probation violation in a separate case. In return, the State
agreed to dismiss two other cases involving the possession of methamphetamine. The district




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court accepted Gentry’s plea and admission of a probation violation, but the court scheduled
another hearing to address sentencing and disposition.
       At a July 2012 hearing, the district court approved the binding plea agreement. Gentry’s
counsel recommended that Gentry be placed on probation, noting that “it’s contemplated that
there would be an interstate compact accomplished to Minnesota.” The court sentenced Gentry
to a unified term of five years, with three years determinate, to run consecutively with a 2009
case. The court then suspended the sentence and placed Gentry on probation, subject to terms
and conditions imposed by the Department of Correction and subject to additional terms and
conditions imposed by the court. After announcing the sentencing and disposition, the district
court explained to Gentry that it was a “very close call” as to whether Gentry would be on
probation or participate in a rider. Additionally, Gentry was warned by the court: “If you mess
up and you come back in front of me, you’ll most likely be going to prison.” After Gentry’s
counsel informed the court that Gentry did “not think that Pocatello is a very good option for
him,” and learning that Gentry had a relative in Boise, the court permitted Gentry “to be
released, upon approval by probation, to go to Boise.”
       In August 2012, a Boise probation officer submitted a report of a probation violation to
the district court in Bannock County. The district court issued a bench warrant, and Gentry was
brought before the court in November 2012 for a hearing. At the November 2012 hearing,
Gentry admitted to certain probation violations as part of a plea agreement and the State agreed
to withdraw other alleged violations. Based on an in-chambers discussion between the parties,
the court agreed to place Gentry back on probation so that Gentry could seek an interstate
compact transfer to North Carolina:
       [The Court]: It seems to me, Mr. Gentry, given the history here, that the best
                    way to protect yourself from getting a new violation is to keep you
                    in jail until that interstate compact’s approved.
       [Gentry]:    I completely agree with you.
       [The Court]: All right. Then what I’m going to do is I’m going to put you back
                    on probation, but it’s going to be on the condition that you will
                    remain in jail until you get an interstate compact. If the interstate
                    compact fails, then you’ll come back in front of me for a different
                    disposition, and we’ll figure out what to do at that point. Do you
                    understand that?
       [Gentry]:    Yes, your Honor.




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(Emphasis added.) After the hearing, the court filed an order continuing probation with three
additional conditions:
       1.      You will apply through the Interstate Compact to transfer to North
       Carolina to live with your maternal Aunt. The Court will waive the application
       fee for the Interstate Compact.
       2.      Should you fail to be approved for the Interstate Compact to North
       Carolina, you will need to come back before the Court.
       3.      You will remain incarcerated at the Bannock County Jail until the Court
       sends a separate order to release you.
       In December 2012, a probation officer with the Department of Correction filed an order
to show cause alleging that the first additional condition had been violated because of an e-mail
from Gentry’s aunt stating that she could not support Gentry in North Carolina. In the first week
of January 2013, Gentry and his counsel appeared at a hearing, acknowledging that the interstate
compact transfer to North Carolina would not succeed:
       [Gentry’s counsel]: Your Honor, it is still my client’s desire to not be in the
                     Pocatello area anymore. I think that that is prudent and reasonable
                     given his past history in Pocatello, Idaho, but unfortunately find
                     ourselves in a situation where he’s not able to interstate compact to
                     anyplace else with family at this point in time. And so it appears
                     that the only option that is now available before him would be
                     probation locally, and then working on transferring his probation
                     elsewhere should he be able to put the resources together.
       ....
       [The Court]: All right. So what I hear you telling me, [Gentry’s counsel], is that
                     in my judgment and order I said that he was to apply to the
                     interstate compact to transfer to North Carolina. That’s now out of
                     the question; correct?
       [Gentry’s counsel]: That’s correct, your Honor. I believe that that was
                     initiated, contacts were made, and then that’s when we were made
                     aware that the aunt in North Carolina would not be able to assist
                     Greg in interstate compact to North Carolina.
       [The Court]: I guess the question that I have, then, is I don’t know what the
                     State’s position is on this, and I don’t know that they’ve been
                     given adequate time. I don’t know if they will agree to local
                     release.
                             I think what we better do is set this for further proceedings
                     and give them a chance to talk to probation, see if this is something
                     they want to agree to or object to.
The court set the matter for further proceedings two weeks later. In the interim, Gentry’s counsel
submitted a motion for work release and an addendum motion for work release.



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       At the final hearing relevant to this appeal, held in mid-January 2013, Gentry’s counsel
requested that Gentry be permitted work search or work release. The district court then heard
arguments from Gentry’s counsel and from the State. During the State’s argument, Gentry’s
counsel objected:
       [Gentry’s counsel]: Your Honor, I would object to--there’s a previous plea
                     agreement concerning the probation violation. There was certain
                     probation violations admitted to and others dismissed. There was
                     an agreement as to probation. The only issue was whether or not
                     we could accomplish an interstate compact.
                              The Court at that time--when the Court took the admissions
                     as to the previous probation violations, the Court--the only issue
                     was whether that interstate compact would be accomplished.
                     Otherwise, there’s an agreement on the record to place Mr. Gentry
                     on probation from the State. . . .
       [The Court]: I don’t remember that agreement. The problem I’ve got is that one
                     of the terms and conditions of probation was the interstate
                     compact.
       [Gentry’s counsel]: And that’s the point I’m making, your Honor. That’s the
                     particular issue. The Court advised Mr. Gentry at that point in
                     time that they would--that you would place him on probation--
       [The Court]: Which I did.
       [Gentry’s counsel]: Which you did, your Honor. And, in fact, advised Mr.
                     Gentry and myself that if the interstate compact was successful, he
                     would not be given credit for the time while waiting at the
                     Bannock County Detention Center.              However, the Court,
                     depending on the final disposition of that interstate compact, would
                     take that into consideration once again as to whether he was given
                     credit for that time in the disposition.
       [The Court]: I’m not following you. Are you telling me that the only thing I can
                     do today is put him on probation?
       [Gentry’s counsel]: Of course not, your Honor. But I am reporting to the Court
                     that the Court advised Mr. Gentry when placing him on probation
                     that if the interstate compact was successful, he wasn’t going to get
                     credit for the time while he sat out at the Bannock County
                     Detention Center.
       [The Court]: Okay. But it wasn’t successful.
Later in the hearing, the court again questioned Gentry’s counsel about counsel’s argument at the
hearing:
       [The Court]: All right. I’m still not following your argument as to why I cannot
                    revoke probation at the current stage. Are you telling me I cannot
                    do it, or I should not do it?




                                               4
       [Gentry’s Counsel] To be fair, your Honor, the correct--the Court ought not.
                     The Court should not revoke probation at this point in time. I’m
                     certainly not saying the Court cannot revoke probation.
       [The Court]: That’s what I heard you say.
       [Gentry’s counsel]: And I apologize if I led the Court to believe that in any
                     form or fashion, your Honor. I just believe that given the fact that
                     the Court has previously placed Mr. Gentry on probation under the
                     condition that he execute an interstate compact, it seems
                     unreasonable to me that the Court revoke probation because those
                     interstate compacts were not successful.
                             Of course I understand the Court’s position that the Court
                     may be basing more of its decision on more information; however,
                     the nature of the probation violations here, which are probation
                     violations, are certainly not of the most heinous nature. In essence,
                     what we have is Mr. Gentry moving out of his sister’s house and
                     leaving the probation department when he was to take a urinalysis,
                     your Honor.
The court also permitted Gentry to give a statement, and Gentry reminded the court that he did
not want to stay in Pocatello. Following Gentry’s statement, the district court announced that it
was going to revoke probation and execute Gentry’s suspended sentence, and a written order was
issued after the hearing. Gentry filed a notice of appeal from this written order.
                                                 II.
                                            ANALYSIS
       Gentry raises two issues on appeal. First, Gentry contends the district court abused its
discretion by revoking his probation for a nonwillful probation violation. Second, he argues that
the district court abused its discretion by executing his suspended sentence without any
reduction.
A.     Probation Revocation
       Gentry contends the district court abused its discretion by revoking his probation.
Specifically, Gentry asserts that his probation violation was not willful and, therefore, the district
court lacked the authority to revoke probation under Idaho Criminal Rule 33(e). The State
argues that Rule 33(e) conflicts with the district court’s authority as set out in Idaho Code
§§ 19-2602, 19-2603, and 20-222. Because the conflict is substantive, according to the State, the
statutes prevail over Rule 33(e). Gentry replies that the rule and statutes can be read together to
avoid a conflict.




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       We conclude that we do not need to address the argument that the Supreme Court rule
conflicts with the legislative enactment.       It is apparent from the record that at the
November 2012 hearing, the district court attempted to accommodate Gentry so that he could
complete an interstate compact transfer to North Carolina. The district court did this by placing
Gentry back on probation and imposing a fundamental condition of probation. The fundamental
condition required that Gentry receive an interstate compact transfer to North Carolina. There
were many variables outside Gentry’s control in the interstate compact transfer process: the state
parole office could have decided that Gentry’s request was not viable; the Idaho office that
handles interstate compact requests could have determined that the reason for the transfer or the
plan was not viable; the receiving state’s office that handles interstate compact requests could
have not accepted the transfer request. What is more, additional hurdles, such as an aunt that
was not willing to support Gentry, could have also dashed Gentry’s plan for an interstate
compact transfer, as it did in this case. This is why the district court specifically announced at
the November 2012 hearing and in the written order that Gentry would appear before the court
again for a different disposition if the interstate compact transfer, a fundamental condition of
probation, did not go through.
       When Gentry’s counsel appeared before the district court in January 2013, after an order
to show cause was filed, Gentry’s counsel plainly acknowledged that the interstate compact
transfer would not succeed. At this point, Gentry had conceded that a fundamental condition of
his probation could not be completed. “After sound determination that a probationer could not
possibly perform a fundamental condition of his probation, the judge has discretion to remove
probation and pronounce sentence.” State v. Oyler, 92 Idaho 43, 47, 436 P.2d 709, 713 (1968).
       At the last hearing on the probation violation, Gentry’s counsel acknowledged that two
different interstate compacts were not successful and also stated that Gentry “himself worries
about his ability to be successful in Pocatello.” Gentry’s counsel proposed that Gentry be
permitted work release or work search in Pocatello.         The State disagreed with Gentry’s
recommendation and argued that the court revoke probation. The court also heard from Gentry,
and Gentry explained why he sought work release. It is apparent from the transcript that the
district court considered the work release or work search option submitted by Gentry. This
option was found inadequate to serve the State’s legitimate interest in punishment, deterrence,
and the protection of society, as Gentry had already violated probation once in this case and


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informed the court on numerous occasions that he did not want to remain in Pocatello.
Moreover, the option was also inadequate for Gentry to succeed, according to the court:
                  Maybe you’ve made the changes you’re telling me about here in open
          court, but the strongest thing I’ve heard is what you told me last time. And that is
          you will not succeed in Pocatello. I want you to prove to me you can succeed in a
          confined environment of a rider program, and then we’ll talk about probation.
Because the district court considered the work release or work search option submitted by Gentry
and found that the option was inadequate, and had on previous occasions attempted other
alternatives sought by Gentry, we cannot say that the district court abused its discretion when it
revoked Gentry’s probation.
B.        Sentence Reduction
          Gentry argues that the district court abused its discretion by executing Gentry’s
suspended sentence without any reduction. After a probation violation has been established, the
court may order that the suspended sentence be executed or, in the alternative, the court is
authorized under Idaho Criminal Rule 35 to reduce the sentence. State v. Beckett, 122 Idaho 324,
325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316
(Ct. App. 1989). A court’s decision not to reduce a sentence after revoking probation will be
disturbed on appeal only upon a showing that the trial court abused its discretion. State v.
Hanington, 148 Idaho 26, 28, 218 P.3d 5, 7 (Ct. App. 2009); Marks, 116 Idaho at 978, 783 P.2d
at 317.
          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 examine the entire record encompassing events before and after the original
judgment. Hanington, 148 Idaho at 29, 218 P.3d at 8. 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 the probation. Id. Applying the foregoing standards, and


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having reviewed the record in this case, we cannot say that the district court abused its discretion
by ordering execution of Gentry’s suspended sentence without reduction.
                                                III.
                                         CONCLUSION
       We conclude that the district court did not abuse its discretion by revoking Gentry’s
probation. Additionally, we conclude that the district court did not abuse its discretion by
executing Gentry’s suspended sentence without reduction. For these reasons, we affirm the
district court’s order revoking Gentry’s probation and executing Gentry’s suspended sentence.
       Judge GRATTON and Judge MELANSON CONCUR.




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