               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46159

STATE OF IDAHO,                                  )
                                                 )   Filed: April 30, 2019
       Plaintiff-Respondent,                     )
                                                 )   Karel A. Lehrman, Clerk
v.                                               )
                                                 )   THIS IS AN UNPUBLISHED
STEVEN DOUGLAS ROCHE,                            )   OPINION AND SHALL NOT
                                                 )   BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

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

       Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
       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; LORELLO, Judge;
                                and BRAILSFORD, Judge
                   ________________________________________________

PER CURIAM
       Steven Douglas Roche pled guilty to burglary, Idaho Code § 18-1401, and grand theft,
I.C. § 18-2407(1)(b)(1). The district court imposed consecutive unified sentences of ten years
with three years determinate for burglary and fourteen years with three years determinate for
grand theft. Roche filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the
district court granted, reducing the indeterminate portion of the grand theft sentence to ten years.
Roche appeals, asserting the district court abused its discretion by declining to further reduce his
sentence.



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       The State, relying on State v. Chapman, 121 Idaho 351, 825 P.2d 74 (1992), argues that
the district court lacked jurisdiction to consider Roche’s Rule 35 motion because the district
court did not timely rule on the motion. Chapman, however, is distinguishable. In that case, the
defendant timely filed a Rule 35 motion, but the district court did not deny the motion until
approximately twenty-nine months later. Chapman, 121 Idaho at 351, 825 P.2d at 74. Then,
approximately three months after denying the motion, the district court on reconsideration
granted the motion. Id. The Idaho Supreme Court reversed. It held that “a district court does
not lose jurisdiction to act upon a timely motion under Rule 35 merely because the 120-day
period [within which a Rule 35 motion must be filed] expires before the judge reasonably can
consider and act upon the motion.” Chapman, 121 Idaho at 354, 825 P.2d at 77. The Court
concluded, however, that “if the trial court does not rule upon the Rule 35 motion within a
reasonable time after expiration of the 120-day period, the trial court loses jurisdiction.”
Chapman, 121 Idaho at 354, 825 P.2d at 77. Further, the Court concluded that “when a district
judge delays action on a Rule 35(b) motion till [sic] long after the expiration of 120 days, for the
purpose or with the likely effect of assuming the function of the parole authorities, his delay is
unreasonable.” Chapman, 121 Idaho at 356, 825 P.2d at 79.
       In this case, Roche timely filed his Rule 35 motion 118 days after judgment. A little
more than five months later, the district court granted the motion. We do not agree with the State
that the district court’s ruling was untimely. The record shows the motion’s resolution was
modestly delayed for purposes of allowing Roche to attend the hearing on the motion and then to
submit supporting information. Under the circumstances, these delays were reasonable. Further,
there is no indication that the district court’s ruling encroached upon the parole commission’s
authority.
       Because we conclude the district court had jurisdiction to act on Roche’s Rule 35 motion,
we address Roche’s argument that the district court abused its discretion by not reducing his
sentence further. Initially, we note that a lower court’s decision to grant or deny a Rule 35
motion will not be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126
Idaho 277, 281, 882 P.2d 444, 448 (Ct. App. 1994). Both our standard of review and the factors
to be considered in evaluating the reasonableness of the sentence are well established. See State
v. Hernandez, 121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Toohill, 103 Idaho 565,
650 P.2d 707 (Ct. App. 1982). When reviewing the length of a sentence, we consider the

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defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Since the district court later modified Roche’s sentence, pursuant to his Rule 35 motion, we will
only review Roche’s modified sentence for an abuse of discretion. See State v. McGonigal, 122
Idaho 939, 940-41, 842 P.2d 275, 276-77 (1992).
       Roche has the burden of showing a clear abuse of discretion on the part of the district
court in failing to further reduce the sentence on his Rule 35 motion. See State v. Cotton, 100
Idaho 573, 577, 602 P.2d 71, 75 (1979). Roche has failed to show such an abuse of discretion.
Accordingly, the order of the district court granting Roche’s Rule 35 motion is affirmed.




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