               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39242

STATE OF IDAHO,                                 )     2012 Unpublished Opinion No. 714
                                                )
       Plaintiff-Respondent,                    )     Filed: November 13, 2012
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
WESTON LLOYD BALLARD,                           )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bingham County. Hon. Darren B. Simpson, District Judge.

       Order revoking probation and requiring execution of unified seven-year sentence
       with three-year determinate term for felony driving under the influence of alcohol,
       affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

                      Before GRATTON, Chief Judge; LANSING, Judge;
                                 and GUTIERREZ, Judge

PER CURIAM
       Weston Lloyd Ballard pled guilty to felony driving under the influence of alcohol. Idaho
Code §§ 18-8004(1)(a) and 18-8005(5). The district court imposed a unified seven-year sentence
with a three-year determinate term, but after a period of retained jurisdiction, suspended the
sentence and placed Ballard on probation. Ballard violated several terms of his probation;
however, the court continued his probation. Subsequently, Ballard again violated several terms
of his probation.   The district court consequently revoked Ballard’s probation and ordered
execution of the original sentence.




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           Following settlement of the appellate record in the Idaho Supreme Court, Ballard filed a
motion to augment the record requesting various transcripts.            The Supreme Court denied
Ballard’s motion. Ballard appeals, contending that the Idaho Supreme Court denied him due
process and equal protection by denying his motion to augment the record with the requested
transcripts. Ballard also asserts the district court abused its discretion by revoking his probation
and failing to sua sponte reduce his sentence.
           Ballard’s brief presents argument that the transcripts he requested in his motion to
augment are needed for effective review of his claims of district court error and, therefore, the
Idaho Supreme Court violated his rights to due process and equal protection and his right to
effective assistance of counsel by denying his motion to augment the record on appeal. We
recently addressed a nearly identical argument in State v. Morgan, ___ Idaho ___, ___ P.3d ___
(Ct. App. July 10, 2012), rev. pending, where we said:
                   We begin by disclaiming any 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. 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.
           Nevertheless, if a motion is, in effect, 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 point of its assignment
           to this Court. Such may occur, for example, if the completed appellant’s and/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. 1

           Ballard has not filed with this Court a renewed motion to augment the record, nor has he
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. He is, in
substance, asking us to determine that the Idaho Supreme Court violated constitutional law by
denying his motion. As that is beyond the scope of our authority, we will not address the issue
further.


1
      In Morgan, for the purpose of a complete discussion, we addressed on the merits each
argument now being advanced by Ballard in this appeal. We rejected them all as without merit.

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       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.
       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 the probation. Id.
       Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either by revoking probation or by ordering
execution of Ballard’s original sentence without modification. Therefore, the district court’s




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order revoking probation and directing execution of Ballard’s previously suspended sentence
without modification is affirmed.




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