               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                 Docket Nos. 41138 & 41139

STATE OF IDAHO,                                 )     2014 Unpublished Opinion No. 655
                                                )
       Plaintiff-Respondent,                    )     Filed: August 8, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
KATHERINE ANNE GIBSON,                          )     THIS IS AN UNPUBLISHED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.

       Order revoking probation and executing concurrent, unified sentences of six
       years, with two years determinate, for possession of a controlled substance and
       forgery, affirmed; orders denying Idaho Criminal Rule 35 motions for reduction
       of sentences, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

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

PER CURIAM
       In consolidated cases at the district court, Katherine Anne Gibson pled guilty to
possession of a controlled substance (methamphetamine), Idaho Code § 37-2732(c), and forgery,
I.C. § 18-3601. The district court sentenced Gibson to concurrent unified sentences of six years,
with two years determinate; however, the court suspended the sentences and placed Gibson on
probation. Several years later, Gibson admitted to violating terms of her probation. The district
court revoked probation and executed Gibson’s underlying sentences. Gibson appealed and the
two cases were consolidated on appeal. Gibson also filed Idaho Criminal Rule 35 motions for
reduction of her sentences, requested additional time to submit supporting information, and

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requested an evidentiary hearing. Later, Gibson filed addendums to her Rule 35 motions with
additional information. The district court denied the motions without holding a hearing.
       After filing this appeal, and before assignment to this Court, Gibson filed a motion to
augment the record with additional transcripts. The Idaho Supreme Court entered an order
granting Gibson’s motion, and the State later filed an objection to the motion to augment. The
Supreme Court treated the State’s objection as a motion for reconsideration, which it granted.
The Supreme Court withdrew its prior order granting the motion to augment and entered an order
denying Gibson’s motion to augment.
       On appeal Gibson argues that the Idaho Supreme Court denied her due process, equal
protection, and effective assistance of counsel by denying her motion to augment the record.
Gibson also contends that the district court abused its discretion by revoking probation and
executing her sentences without reduction. Further, Gibson contends the district court erred by
denying her Rule 35 motions based on a lack of new information.
A.     Denial of Motions to Augment Record
       Gibson asks this Court to hold that the Idaho Supreme Court deprived her of due process,
equal protection, and effective assistance of counsel when it denied her 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.
       Gibson has not filed with this Court a renewed motion to augment the record or presented
to this Court in her briefing any significant new facts or a new justification for augmentation


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beyond that already advanced in her motion to the Supreme Court. In essence, Gibson asks us to
determine that the Idaho Supreme Court violated constitutional law by denying her motions.
       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. Gibson had an opportunity to present
her constitutional arguments to the Supreme Court and that Court denied her motion. She has no
right to appeal that denial to the Idaho Court of Appeals, and we have no authority to consider
such an appeal.
B.     Revocation of Probation and Review of Sentence
       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. 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.
       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


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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. 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. Thus, this Court will
consider the elements of the record before the trial court that are properly made part of the record
on appeal and are relevant to the defendant’s contention that the trial court should have reduced
the sentence sua sponte upon revocation of probation. Morgan, 153 Idaho at 621, 288 P.3d at
838.
       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. Assuming Gibson can
challenge the district court’s failure to sua sponte reduce her sentences, we also conclude that the
district court did not err in ordering execution of Gibson’s underlying sentences without
reduction.   The order revoking probation and executing Gibson’s underlying sentences is
affirmed.
C.     Idaho Criminal Rule 35 Motions
       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).
       Gibson contends the district court erred by denying her motions based on a lack of new
information. However, the record reveals that the district court did consider Gibson’s new
information submitted in the addendums. In the order denying the motions, the district court
stated, “Gibson’s attorney filed additional material, which this Court will consider.” It appears


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Gibson’s position stems from the district court’s denial of Gibson’s request for additional time to
submit supporting information and an evidentiary hearing on the motion.
       Rule 35 provides that motions under the rule “shall be considered and determined by the
court without the admission of additional testimony and without oral argument, unless otherwise
ordered by the court in its discretion.” Thus, the decision whether to conduct a hearing on a Rule
35 motion is directed to the sound discretion of the district court. State v. Peterson, 126 Idaho
522, 525, 887 P.2d 67, 70 (Ct. App. 1994). If anticipated evidence is not yet available or if the
defendant believes that an evidentiary hearing is essential because relevant evidence cannot be
adequately presented in writing, such circumstances should be explained to the court in the
motion or an accompanying affidavit. State v. Bayles, 131 Idaho 624, 626-27, 962 P.2d 395,
397-98 (Ct. App. 1998). As we stated in State v. Fortin, 124 Idaho 323, 328, 859 P.2d 359, 364
(Ct. App. 1993), “A Rule 35 movant wishing to submit additional evidence should make an
‘offer of proof’ in the motion itself or by an accompanying affidavit to enable the district judge to
make a reasoned decision on whether to hold an evidentiary hearing and to create a record upon
which appellate review may be based.”
       Here, the district court did not refuse to consider any new evidence offered by Gibson nor
unfairly limit or preclude her presentation of evidence. See Bayles, 131 Idaho at 626-27, 962
P.2d at 397-98. The district court found that Gibson only presented vague speculation as to
categories of potential information and additionally noted that Gibson did not provide any reason
why an evidentiary hearing would be necessary. Accordingly, the district court did not abuse its
discretion by denying Gibson’s request for additional time to submit supporting information 1 or
by denying Gibson’s request for an evidentiary hearing. As such, the district court did not err in
denying Gibson’s Rule 35 motions. The orders denying Gibson’s Rule 35 motions are affirmed.




1
       As we indicated above, the district court did ultimately consider the supporting
information submitted by Gibson.

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