                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43208

STATE OF IDAHO,                                 )   2016 Unpublished Opinion No. 545
                                                )
       Plaintiff-Respondent,                    )   Filed: May 23, 2016
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
JEFFREY SCOTT NALLY,                            )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Benjamin R. Simpson and Cynthia K.C. Meyer, District
       Judges.

       Order relinquishing jurisdiction and order denying Idaho Criminal Rule 35,
       affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

                     Before MELANSON, Chief Judge; GRATTON, Judge;
                                  and HUSKEY, Judge
                   ________________________________________________

PER CURIAM
       Jeffrey Scott Nally pleaded guilty to burglary, Idaho Code § 18-1401. The district court
imposed a unified ten-year sentence, with five years determinate, retained jurisdiction and Nally
was sent to participate in the rider program.
       Three months after beginning his retained jurisdiction program and only two days into
the actual programming, the Idaho Department of Correction recommended the district court
relinquish jurisdiction over Nally based on Nally’s behavior. Nally’s behavioral issues consisted
of 1) making racial slurs and obscene gestures at an orientation meeting and 2) vandalizing his
cell by removing two screws from the fire alarm cover, putting holes in the walls, and

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obstructing the ceiling vents. For each of these issues, Nally received a Disciplinary Offense
Report (DOR). Nally contested the DORs (he admitted some, but not all, of the facts in the first
DOR) and such appeal was pending at the time of the jurisdictional review hearing, although
Nally contended the deputy warden had overturned the DORs and Nally believed the DORs
would ultimately be dismissed. IDOC staff documented a third incident in which staff believed
Nally was trying to manipulate the staff with false medical issues. After a hearing in which
conflicting evidence was presented regarding the DORs, the district court relinquished
jurisdiction and imposed a reduced, unified eight-year sentence, with three years determinate.
Nally filed an Idaho Criminal Rule 35 motion, which the district court denied. Nally appeals,
claiming the district court erred by refusing to continue to retain jurisdiction instead of
relinquishing jurisdiction and by denying his I.C.R. 35 motion.
       We note that the decision to place a defendant on probation or whether, instead, to
relinquish jurisdiction over the defendant is a matter within the sound discretion of the district
court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102
Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-
97 (Ct. App. 1990). Moreover, a court’s decision to relinquish jurisdiction will not be deemed an
abuse if the trial court has sufficient information to determine that a suspended sentence and
probation would be inappropriate pursuant to I.C. § 19-2521. State v. Chapel, 107 Idaho 193,
194, 687 P.2d 583, 584 (Ct. App. 1984).
       The record in this case shows the district court properly considered the information
before it and determined probation was not appropriate. We hold that Nally has failed to show
that the district court abused its discretion in relinquishing jurisdiction. Nally, through his
attorney, specifically stated there were no corrections or additions to the Addendum to the
Presentence Investigation Report (PSI), thereby admitting the truth of the contents and agreeing
with the representations of IDOC staff. Although Nally also offered the statements of other
inmates contesting the information, and denying it himself, the district court was in the best
position to determine Nally’s and the others’ credibility. And, while the DORs were ultimately
dismissed, there may be several reasons for the dismissal--it may be because Nally was found not
guilty of the violations or it may be that because jurisdiction was relinquished, it was not worth
the effort of pursuing the DORs since Nally was no longer being evaluated for suitability for
probation. At the time of the jurisdictional review hearing, the district court found that probation

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was not appropriate in Nally’s case; the record does not indicate that the district court abused its
discretion in this case.
        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). Upon review of the
record, including any new information submitted with Nally’s I.C.R. 35 motion, we conclude no
abuse of discretion has been shown.
        The district court’s order relinquishing jurisdiction and order denying Nally’s I.C.R. 35
motion are affirmed.




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