               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43330

STATE OF IDAHO,                                  )   2016 Unpublished Opinion No. 332
                                                 )
       Plaintiff-Respondent,                     )   Filed: January 21, 2016
                                                 )
v.                                               )   Stephen W. Kenyon, Clerk
                                                 )
JESSE JAMES WHARTON,                             )   THIS IS AN UNPUBLISHED
                                                 )   OPINION AND SHALL NOT
       Defendant-Appellant.                      )   BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Robert C. Naftz, District Judge.

       Order revoking probation and executing underlying sentence, affirmed; order
       denying I.C.R. 35 motion, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Andrea W. Reynolds, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

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

PER CURIAM
       Jesse James Wharton pled guilty to attempted strangulation. Idaho Code § 18-923(1).
The district court imposed a unified sentence of eight years with three years determinate and
retained jurisdiction. Following a period of retained jurisdiction, the district court suspended the
sentence and placed Wharton on supervised probation for a period of five years. Subsequently,
Wharton admitted to violating some of the terms of the probation, and the district court placed
Wharton on a new five-year term of probation, ordering him to serve discretionary jail time.
Prior to completion of the probation, Wharton admitted to again violating his probation. The
district court consequently revoked probation and ordered execution of the original sentence.

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Wharton filed an Idaho Criminal Rule 35 motion for a reduction of sentence. Following a
hearing, the district court denied the motion. Wharton appeals, contending that the district court
abused its discretion by revoking probation and by denying his I.C.R. 35 motion.
       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. State v. Morgan, 153 Idaho
618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the
record before the trial court relevant to the revocation of probation issues which are properly
made part of the record on appeal. Id.
       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 probation. Id.
       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 a Rule 35 motion, the defendant must show that the sentence is excessive in light of

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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 Wharton’s Rule 35 motion, we conclude
no abuse of discretion has been shown. Therefore, the district court’s order denying Wharton’s
Rule 35 motion is affirmed.
       Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either in revoking probation or by denying
Wharton’s Rule 35 motion. Therefore, the order revoking probation and directing execution of
Wharton’s previously suspended sentence and the order denying Rule 35 motion are affirmed.




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