               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39197

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 756
                                                 )
       Plaintiff-Respondent,                     )      Filed: December 6, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
STEVEN WAYNE CRAWFORD,                           )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Thomas J. Ryan, District Judge.

       Order denying Idaho          Criminal   Rule    35   motion     for   reduction   of
       sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

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

PER CURIAM
       Steven Wayne Crawford pled guilty to possession of a controlled substance with intent to
deliver, Idaho Code § 37-2732(a)(1)(A), and sexual battery of a minor child sixteen or seventeen
years of age, I.C. § 18-1508A. The district court sentenced Crawford to two concurrent, unified
terms of twenty years, with four years determinate. Crawford filed an Idaho Criminal Rule 35
motion for reduction of his sentences and a motion for progress report, requesting the court to
order a progress report from the Idaho State Board of Correction. The district court issued an
order for a progress report from the Idaho State Board of Correction, but did not receive a report.
Almost five months after ordering the progress report, the district court entered an order denying




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Crawford’s Rule 35 motion.        Crawford appeals, contending the district court abused its
discretion by denying his Rule 35 motion without receiving or considering the progress report.
       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).
       The burden of showing that the original sentence was unduly severe is upon the moving
party. State v. Wright, 114 Idaho 451, 453, 757 P.2d 714, 716 (Ct. App. 1988). As such, it was
Crawford’s burden to follow up receipt of the ordered progress report in support of his motion.
The district court waited almost five months after ordering the progress report, allowing ample
time for Crawford to follow up receipt of the progress report, before denying Crawford’s motion.
It cannot be said the burden of obtaining the report is upon the court or the State. State v.
Bianchi, 121 Idaho 766, 768, 828 P.2d 329, 331 (Ct. App. 1992). Accordingly, the district
court’s decision to proceed without the previously ordered progress report was not an abuse of
discretion. Hassett v. State, 127 Idaho 313, 318, 900 P.2d 221, 226 (Ct. App. 1995); Bianchi,
121 Idaho at 768, 828 P.2d at 331.
       Furthermore, the district court did consider Crawford’s good performance while
incarcerated, along with other information submitted by Crawford in support of his Rule 35
motion. More specifically, Crawford submitted letters of support from friends and family,
advised he was performing well while incarcerated, reiterated his criminal conduct was largely
due to his substance abuse issues that should be addressed in a retained jurisdiction program, and
reiterated that the psychosexual evaluator concluded he was amenable to community based
treatment. However, the district court was already aware of this information at the time of
sentencing, including that Crawford was performing well while incarcerated and was supported
by his friends and family. Therefore, even if we were to assume the progress report was
substantially favorable, the district court still had discretion to deny the motion. Hassett, 127
Idaho at 318, 900 P.2d at 226; State v. Sanchez, 117 Idaho 51, 52, 785 P.2d 176, 177 (Ct. App.
1990). This Court has previously held that while good conduct in prison may be worthy of
consideration, it may not be an accurate indicator of future conduct in a noncustodial setting and


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must be viewed against the entire record. Hassett, 127 Idaho at 318, 900 P.2d at 226; Sanchez,
117 Idaho at 52, 785 P.2d at 177.
       Upon review of the record, we conclude no abuse of discretion has been shown.
Therefore, the district court’s order denying Crawford’s Rule 35 motion is affirmed.




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