               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43598

STATE OF IDAHO,                                  )    2016 Unpublished Opinion No. 703
                                                 )
       Plaintiff-Respondent,                     )    Filed: September 27, 2016
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
DERRICK J. ASCHLIMAN,                            )    THIS IS AN UNPUBLISHED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,
       Bonneville County. Hon. Dane H. Watkins, Jr., District Judge.

       Order denying motion to withdraw guilty plea, affirmed; judgment of conviction
       and unified sentence of fifteen years, with a minimum period of confinement of
       two years, for sexual abuse of a child under the age of sixteen years, affirmed.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Jenny C.
       Swinford, Deputy Appellate Public Defender, Boise, for appellant.

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

GRATTON, Judge
       Derrick J. Aschliman appeals from his judgment of conviction following his plea of
guilty to sexual abuse of a child under the age of sixteen years, Idaho Code § 18-1506(1)(c).
Specifically, Aschliman argues that the district court abused its discretion by denying his motion
to withdraw his guilty plea and by imposing an excessive sentence. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Aschliman’s wife (G.A.) reported to the Bonneville County Sheriff’s office that she had
found a video of her fourteen-year-old daughter showering which had been downloaded to the
family’s computer from Aschliman’s tablet. G.A. stated that the video showed Aschliman
setting up the tablet in the bathroom, telling his stepdaughter to take a shower, the girl showering

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and dressing, then Aschliman removing the tablet. G.A. further stated that Aschliman had since
deleted the video. The sheriff’s office obtained the computer but was not able to recover the
video. G.A. also alleged that her daughter disclosed that Aschliman had made contact of a
sexual nature with her daughter in their kitchen after she refused to do her chores. G.A. stated
that she confronted Aschliman and he had admitted to the incidents. The sheriff’s office also
obtained a recorded conversation between G.A. and Aschliman where he admitted to the
incidents. Aschliman was charged with sexual abuse of a child under the age of sixteen years by
making photographic or electronic recording of a minor under sixteen years of age and causing
or having sexual contact with a minor under sixteen years of age. I.C. §§ 18-1506(1)(c), 18-
1506(1)(b).
       The parties entered into an Alford1 plea agreement in which Aschliman agreed to plead
guilty to sexual abuse of a child by making photographic or electronic recording of a minor
under sixteen years of age and to obtain a psychosexual evaluation for sentencing purposes. The
plea agreement included a term under which the court would impose a period of retained
jurisdiction. If the court declined to do so, Aschliman could withdraw his plea. The State agreed
to dismiss the other charge, to recommend Aschliman’s release to pretrial services upon entry of
the plea, and to recommend probation on the condition that the psychosexual evaluation did not
reveal additional victims or any other crimes against the victim in this case. However, if the
psychosexual evaluation did show additional victims or crimes, the State agreed the court was
bound to sentence the defendant to no greater than a retained jurisdiction. The district court
accepted the Alford plea and Aschliman was released from custody.
       The presentence investigation report (PSI) noted that Aschliman received a psychosexual
evaluation which determined he was a low risk to sexually recidivate, but was not a good
candidate for sex offender treatment given his failure to admit to his crime. Also noted was
Aschliman’s participation in a full disclosure polygraph examination in which the examiner
concluded that Aschliman indicated significant response and deception on all three test
sequences. The investigator confronted Aschliman with the results but he refused to provide any
further information.    The investigator’s recommendation noted that Aschliman “requires
incarceration until, or if, his risk to the community (via a non-deceptive polygraph examination)



1
       See North Carolina v. Alford, 400 U.S. 25 (1970).
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can be determined.” The district court granted Aschliman three continuances to complete a
second polygraph examination but he failed to do so.
       Aschliman filed a motion to withdraw his guilty plea after reviewing the PSI, which the
district court denied. Subsequently, Aschliman was sentenced to a unified sentence of fifteen
years with two years determinate and the court retained jurisdiction. Aschliman filed an Idaho
Criminal Rule 35 motion to reduce his sentence, which was also denied.2 Aschliman timely
appeals.
                                                 II.
                                            ANALYSIS
A.     Withdrawal of Plea
       Aschliman asserts he provided the district court with a just reason to withdraw his plea.
Whether to grant a motion to withdraw a guilty plea lies in the discretion of the district court and
such discretion should be liberally applied. State v. Freeman, 110 Idaho 117, 121, 714 P.2d 86,
90 (Ct. App. 1986). Appellate review of the denial of a motion to withdraw a plea is limited to
determining whether the district court exercised sound judicial discretion as distinguished from
arbitrary action. Id. When a trial court’s discretionary decision is reviewed on appeal, the
appellate court conducts a multi-tiered inquiry to determine whether:           (1) the lower court
correctly perceived the issue as one of discretion; (2) the lower court acted within the boundaries
of such discretion and consistently with any legal standards applicable to the specific choices
before it; and (3) the lower court reached its decision by an exercise of reason. State v. Hedger,
115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       The first step in analyzing a motion to withdraw a guilty plea is to determine whether the
plea was knowingly, intelligently, and voluntarily made. State v. Hanslovan, 147 Idaho 530,
536, 211 P.3d 775, 781 (Ct. App. 2008); State v. Rodriguez, 118 Idaho 957, 959, 801 P.2d 1308,
1310 (Ct. App. 1990). If the plea is constitutionally valid, the court must then determine whether
the defendant has shown another just reason for withdrawing the plea. I.C.R. 33(c); State v.
Flowers, 150 Idaho 568, 571, 249 P.3d 367, 370 (2011). This just reason standard does not
require that the defendant establish manifest injustice or a constitutional defect in the guilty plea.
Flowers, 150 Idaho at 571, 249 P.3d at 370; State v. Henderson, 113 Idaho 411, 413, 744 P.2d
795, 797 (Ct. App. 1987). If he does so, the State may avoid the granting of the motion by

2
       Aschliman does not challenge on appeal the district court’s denial of his Rule 35 motion.
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showing prejudice would result if the plea were withdrawn. Flowers, 150 Idaho at 571, 249 P.3d
at 370. The defendant’s failure to present and support a plausible reason will dictate against
granting withdrawal, even absent prejudice to the prosecution. State v. Dopp, 124 Idaho 481,
485, 861 P.2d 51, 55 (1993).        The good faith, credibility, and weight of the defendant’s
assertions in support of his motion to withdraw his plea are matters for the trial court to decide.
Hanslovan, 147 Idaho at 537, 211 P.3d at 782. Even when the motion is presented before
sentencing, if it occurs after the defendant has learned the content of the PSI or has received
other information about the probable sentence, the district court may temper its liberality by
weighing the defendant’s apparent motive. State v. Mayer, 139 Idaho 643, 647, 84 P.3d 579, 583
(Ct. App. 2004). Aschliman does not contest the constitutional validity of his plea and therefore,
we review only the just reason determination.
       Aschliman argues that he should have been allowed to withdraw his guilty plea in order
to exercise his right to a jury trial, to challenge the sufficiency of the evidence, and present new
legal arguments. These arguments were also those presented to the district court in Aschliman’s
initial motion to withdraw his plea. Aschliman states that he had concerns about the “quality,
quantity and accuracy of the evidence” against him, specifically that the State did not have in its
possession the alleged video. Further, Aschliman asserts that after he was released from custody,
he was able to study the allegations made against him and he realized he made an error in
acknowledging the likelihood of conviction. Finally, Aschliman avers that he also had the
opportunity to conduct legal research since being released from custody which led him to believe
that there were “additional laws or legal doctrines which may apply to his case and which have
been ignored or not properly applied.” Aschliman contends that the above reasons amounted to a
just reason to withdraw his plea.
       Aschliman has failed to show that the district court abused its discretion in determining
that the above arguments do not constitute just reason for withdrawal of his plea. The district
court did not regard Aschliman’s assertions as timely alleged, noting that the appropriate time to
raise his concerns relating to the allegations against him, the supporting evidence, and applicable
legal doctrines was during the plea hearing.         At that time, Aschliman’s own trial counsel
provided a factual basis for his plea and Aschliman acknowledged there was sufficient evidence
to sustain a guilty verdict. Also, Aschliman failed to divulge which laws and doctrines may have
provided just cause to withdraw his guilty plea. Aschliman’s assertion that he changed his mind

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after further studying the charges against him does not suggest that at the time he entered his plea
he was unaware of the allegations and supporting evidence, or that his counsel did not make sure
he was aware. Aschliman’s suggestion is not that he did not have enough time to consider the
consequences of the Alford plea when he agreed to it, but rather that he subsequently had even
more time to think about it and then came to a different conclusion. This argument is insufficient
to show just cause.
       Finally, Aschliman’s motion to withdraw his guilty plea was made after the preparation
of his PSI, which recommended incarceration until his risk to the community could be
determined with a second polygraph examination. The district court noted that Aschliman had
the opportunity to consider this information for four months before filing his motion to withdraw
his plea. The district court was entitled to take Aschliman’s awareness of the PSI and sentence
recommendation into account when ascertaining his motive for withdrawing his plea.
       Aschliman has failed to show that the district court erred in denying his motion to
withdraw his guilty plea. Therefore, we hold that the district court properly acted within its
discretion in determining that Aschliman had not shown a just reason for allowing withdrawal of
his plea. Accordingly, Aschliman’s judgment of conviction for sexual abuse of a child under the
age of sixteen years is affirmed.
B.     Excessive Sentence
       Aschliman argues the district court abused its discretion by imposing a unified fifteen-
year sentence with two years determinate with retained jurisdiction.         He contends that the
sentence is excessive given any reasonable view of the facts because the district court did not
give adequate consideration to relevant mitigating factors. These factors include his parents’
drug use; the fact that he was born with a condition where one of his shoulders did not descend
correctly; his history of being physically, emotionally, and sexually abused; his history of being
bullied at school; and his diagnosis of marijuana dependence.
       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.
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

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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).
        Applying these standards and having reviewed the record in this case, we cannot say that
the district court abused its discretion.     The district court emphasized its concern with
Aschliman’s criminal history, including being arrested while awaiting sentencing, as well as
Aschliman’s failure to obtain a second polygraph. It also noted that retaining jurisdiction gives
Aschliman an additional opportunity to be compliant, and for the district court to further evaluate
the risk before Aschliman returns to the community. The court’s sentence clearly demonstrates
its focus on the primary objective of protecting society and is not an abuse of discretion.
Accordingly, his sentence is affirmed.
                                                III.
                                         CONCLUSION
        The district court did not abuse its discretion in denying Aschliman’s motion to withdraw
his guilty plea.   Additionally, the district court did not abuse its discretion in sentencing
Aschliman. Accordingly, the order denying Aschliman’s motion to withdraw guilty plea and
Aschliman’s judgment of conviction and sentence are affirmed.
        Judge GUTIERREZ and Judge HUSKEY CONCUR.




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