               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40912

STATE OF IDAHO,                                  )     2014 Unpublished Opinion No. 343
                                                 )
       Plaintiff-Respondent,                     )     Filed: February 4, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
DUSTIN RAY GOLDEN,                               )     THIS IS AN UNPUBLISHED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. Thomas F. Neville, District Judge.

       Order relinquishing      jurisdiction   and    sentence   for   felony    domestic
       violence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Dustin Ray Golden was charged with one count of attempted strangulation, Idaho Code
§ 18-923, and one count of domestic violence, I.C. §§ 18-903(a) and 18-918(2), as a result of
violence that he inflicted upon his girlfriend. Part II of the information alleged that Golden was
subject to a sentence enhancement as a persistent violator pursuant to I.C. § 19-2514. At a
pretrial conference, Golden’s counsel informed the court that Golden had rejected an offer by the
State under which, if Golden would plead guilty to felony domestic violence, the State would
dismiss the remaining allegations and dismiss a newly-filed felony charge for failure to register
as a sex offender. Upon learning that Golden had rejected this plea offer, the district court
became a participant in the plea negotiations. The court’s statements included the following:
             And the--the Court would want to see the evaluation from Oregon on
       domestic violence, but I can throw in my own offer here, and say that the Court
       would give serious consideration to retaining jurisdiction, for evaluative


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        purposes, meaning I’d raise the bar, and recommend the conflict resolution
        program, CRP, which is done at the CAPP facility, as part of the CAPP program.
        CAPP is a--a program that specializes in substance abuse, that sort of thing.
                 No guarantees, but the Court would give serious consideration for a plea
        as has been proposed by the State. This is not--the State’s not--the State would
        still be recommending prison straight away; the Court would be giving--would be
        willing to give serious consideration to retaining jurisdiction for evaluative
        purposes. It’s not where the bar’s left on the ground and nobody--and everybody
        get a probation recommendation. It has to be a good rider.
                 ....
        And if the Court retained--if the Court retained jurisdiction for evaluative
        purposes, you would have to do a fine rider before the Court would consider, at
        the end of the rider, placing you on probation.

The district court also stated, “I’m not going to offer this more than today, and--and that offer’s
going to go away in about ten minutes, Mr. Golden. . . . [Y]ou need to just tell me whether
you’re interested in this or not. I’m--I’m not guaranteeing you a rider, but I’m saying I would
give serious consideration to a rider.” After consulting with his attorney about the district
court’s offer, Golden decided to plead guilty and, pursuant to a plea agreement, entered his guilty
plea to felony domestic violence.
        At the sentencing hearing, the district court noted that Golden had previously committed
approximately ten felonies and that the domestic violence evaluation conducted for purposes of
sentencing placed him in the highest risk range for repeat domestic violence. The court then
said:
                For the record, the Court did--did give very serious consideration to
        retaining jurisdiction for evaluative purposes, and recommending the conflict
        resolution program. The Court, frankly, was unaware of the number of prior
        felonies that Mr. Golden had, and I was not aware of what the--was not yet aware
        of what the results of Tom Wilson’s domestic violence evaluation were likely to
        be.
                And--and so, after giving that serious consideration, the Court has
        concluded that it will not retain jurisdiction for evaluative purposes, as the Court
        had seriously--had committed to seriously considering.

The district court imposed a unified ten-year sentence with six years determinate. The district
court also retained jurisdiction, but informed Golden:
        [T]here’s no circumstance under which the Court will not send you to prison at
        the end of this rider. What I’m trying to do is to get you some programming, that
        you might otherwise not get, right up front by send--by retaining jurisdiction for
        365 days for--for evaluative purposes only.


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               The difference is only. What I mean by that is I’m going to be sending
       you to prison at the end of this rider, but I’m going to give you a chance to show
       me that perhaps the six years fixed isn’t right, and that it should be something less
       than that.
               ....
               If the defendant makes fundamental self-change on this rider, and
       convinces me at--that he does a genuinely great rider, the Court will consider, at
       the rider review hearing, reducing--possibly reducing the fixed portion of his
       sentence. The only actual promise I’m making to the defendant is that I guarantee
       him a hearing in about six months, the rest of it’s going to be completely up to
       him.

Upon Golden’s completion of his rider, the district court relinquished jurisdiction, but also
determined that Golden had made some rehabilitative progress during his rider and therefore
reduced the fixed term of his sentence to four years.
       On appeal, Golden argues that the district court “breached the plea agreement when it
reneged on the promise that it would consider placing Mr. Golden on probation if he did well on
his rider.” This breach of the plea agreement, according to Golden, represented an abuse of the
court’s sentencing discretion.
       This claim of error is not supported by the record because, as the italicized portions of the
court’s comments quoted above demonstrate, the district court only agreed to consider probation
if a rider was granted for evaluative purposes.         The court also promised to give serious
consideration to retaining jurisdiction for evaluative purposes at sentencing.         The court’s
comments at the plea hearing made clear that the court was not making any guarantees or
promises of probation and that the court was agreeing only to give serious consideration to
retaining jurisdiction for evaluative purposes; it made no promise that it would retain jurisdiction
at all, much less that it would retain jurisdiction and give serious consideration to probation
thereafter. As the court’s statements at the sentencing hearing made clear, the court did not
renege on that promise but did, in fact, “give very serious consideration to retaining jurisdiction
for evaluative purposes” but, upon seeing the results of Golden’s domestic violence evaluation
and his criminal record as revealed in the PSI, the court decided against retaining jurisdiction for
the purpose of evaluating Golden for probation. Accordingly, Golden’s argument that the court
abused its discretion by violating the terms of the plea agreement is without merit.
       The decision as to whether to place a defendant on probation or, instead, to relinquish
jurisdiction is committed to the discretion of the sentencing court. State v. Hernandez, 122 Idaho


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227, 230, 832 P.2d 1162, 1165 (Ct. App. 1992); State v. Lee, 117 Idaho 203, 786 P.2d 594 (Ct.
App. 1990); State v. Toohill, 103 Idaho 565, 567, 650 P.2d 707, 709 (Ct. App. 1982). Therefore,
a decision to relinquish jurisdiction will not be disturbed on appeal except for an abuse of
discretion. State v. Chapman, 120 Idaho 466, 816 P.2d 1023 (Ct. App. 1991). The record in this
case shows that the district court properly considered the information before it and determined
that probation was not appropriate. We hold that the district court did not abuse its discretion,
and we therefore affirm the order relinquishing jurisdiction.
       Golden also argues that the court abused its discretion by failing to further reduce
Golden’s sentence upon relinquishing jurisdiction. Sentencing is a matter for the trial court's
discretion. Both our standard of review and the factors to be considered in evaluating the
reasonableness of the 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); Toohill, 103 Idaho at 568, 650 P.2d at
710. 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 the foregoing
standards, and having reviewed the record in this case, we cannot say that the district court
abused its discretion in ordering execution of Golden’s modified sentence. Therefore, the order
relinquishing jurisdiction and the sentence, as modified, are affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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