               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39449

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 374
                                                )
       Plaintiff-Respondent,                    )     Filed: February 21, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
RICHARD ANDREW HUBBARD,                         )     THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Judgment of conviction and unified sentence of ten years, with a minimum period
       of confinement of five years, for failure to register as a sex offender; order
       denying I.C.R. 35 motion for reduction of sentence, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       In 2011, Richard Andrew Hubbard pled guilty to failure to register as a sex offender.
I.C. §§ 18-8311, 18-8307. At his sentencing hearing, Hubbard argued that the district court
should impose a lenient sentence because he would subsequently be extradited to California,
where he would serve time as a consequence of violating parole on a lewd and lascivious
conduct conviction.   In response to this argument, the district court discussed Hubbard’s
underlying lewd and lascivious conviction and explained why Hubbard’s sentencing request
would be inappropriate. The district court imposed a unified sentence of ten years, with a
minimum period of confinement of five years. The district court entered Hubbard’s judgment of
conviction and commitment on October 14, 2011. Hubbard filed an I.C.R. 35 motion for
reduction of sentence, requesting reconsideration of his sentence “upon the grounds and for the
reason that the defendant requests leniency.” The district court allowed additional time for


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Hubbard to supplement the motion, but no additional information was provided. The district
court denied the motion without a hearing. Hubbard appeals.
       On appeal, Hubbard asserts that, by considering the underlying lewd and lascivious case
at sentencing, the district court violated Hubbard’s right to be free from double jeopardy. He
also argues that his sentence is excessive. 1 A defendant is able to raise a double jeopardy
challenge through a timely appeal of the judgment of conviction, through a motion to correct an
illegal sentence under Rule 35, or by an application for post-conviction relief. State v. Jensen,
138 Idaho 941, 944 n.2, 71 P.3d 1088, 1091 n.2 (Ct. App. 2003). In this case, Hubbard has
failed to pursue any of these avenues. Instead, Hubbard raises the issue on appeal from a
Rule 35 motion for reduction of sentence. Hubbard argues that, because he did not properly raise
the double jeopardy issue below, he should be permitted to raise it for the first time on appeal as
fundamental error pursuant to State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
This argument has no merit. Generally, we do not review error not preserved for appeal through
an objection at trial. Perry provides for review of unobjected to error as a matter of due process
when the defendant shows that one of his unwaived constitutional rights was plainly violated.
Id. at 224-25, 245 P.3d at 976-77; see also State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285
(2007). Here, adherence to the rule that we do not review error not preserved for appeal would
result in no deprivation of due process. If, as Hubbard alleges, his sentence was illegal and the
illegality is plain from the record (issues we need not address here), he may still file a motion
under Rule 35 to correct an illegal sentence. This will properly allow the trial court the first
opportunity to consider the claim of an illegal sentence. State v. Lavy, 121 Idaho 842, 845, 828
P.2d 871, 874 (1992) (Court declined to consider claim of illegal sentence raised for first time on
appeal, notwithstanding the fact that the record clearly demonstrated sentence was illegal).
       Hubbard also claims that the district court imposed an excessive sentence because it
focused on the facts of the lewd and lascivious conduct case rather than the case pending before
it. An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion.


1
       Hubbard has abandoned another issue raised in his appellant’s brief--that the district court
should have red-lined portions of the presentence investigation report.


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State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (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).
        Review of the sentencing hearing reveals that the comments made by the district court
pertaining to the underlying lewd and lascivious conviction were primarily in response to
Hubbard’s main argument--that the district court should impose a lenient sentence because
Hubbard would be extradited to California upon resolution of this case and expected to serve
four years there. Additionally, consideration of the underlying case by the district court was
plainly necessary to determine the extent of a danger Hubbard posed to society by failing to
register as a sex offender and his potential for rehabilitation. The two cases are necessarily
intertwined. Furthermore, the district court considered Hubbard’s entire criminal history. Also
before the district court was information regarding Hubbard’s probation violations, his
termination from sex offender treatment, his prison disciplinary record, and his absconding from
parole. Having reviewed the record, the district court did not abuse its discretion in the sentence
imposed in this case.
        As to the denial of Hubbard’s Rule 35 motion, we note that no new information was
provided to the district court in support of the motion. 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). In conducting our review of the grant or denial of a Rule 35
motion, we consider the entire record and apply the same criteria used for determining the




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reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct.
App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984).
       Applying the foregoing standards, we conclude no abuse of discretion has been shown.
Therefore, Hubbard’s judgment of conviction and sentence and the district court’s denial of
Hubbard’s Rule 35 motion are affirmed.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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