               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 39263

STATE OF IDAHO,                                 )     2012 Unpublished Opinion No. 749
                                                )
       Plaintiff-Respondent,                    )     Filed: November 29, 2012
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
RONNIE NICHOLAS RADFORD,                        )     THIS IS AN UNPUBLISHED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. Gregory S. Anderson, District Judge.

       Order revoking probation and executing suspended sentence of a unified term of
       five years, with one and one-half years determinate, for burglary, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Ronnie Nicholas Radford appeals from the district court’s order revoking his probation
and executing his suspended sentence, previously imposed following his entry of a guilty plea to
burglary. Specifically, Radford argues the Idaho Supreme Court denied him due process when it
denied his motion to augment the record with transcripts of hearings that occurred prior to the
revocation of his probation. Additionally, Radford argues that the district court abused its
discretion when it failed to sua sponte reduce his sentence upon revoking probation. For the
reasons set forth below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       The criminal case underlying this appeal arose from a charge of burglary and Radford’s
entry of a guilty plea to that offense.   Pursuant to a plea agreement, the State agreed to
recommend probation and not oppose a withheld judgment. The district court imposed a unified

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sentence of five years, with one and one-half years determinate, but suspended the sentence and
placed Radford on probation for a term of four years beginning in January 2008 with the
additional order that Radford serve ninety days jail time at the discretion of the court.
       In August 2008, the State filed a report alleging probation violations. Radford admitted
that he failed to report to his probation officer, changed residence without prior approval from
his probation officer, and absconded from supervision. After the admission hearing, the district
court ordered a substance abuse evaluation. In October 2008, upon review of the evaluator’s
recommendations, the district court continued the probation, but imposed additional terms that
required Radford to complete an intensive outpatient treatment program, as recommended by the
evaluator, and participate in problem solving court as directed by his probation officer.
       Radford initially complied with the new probation terms by entering the family drug
court. However, Radford was suspended from family drug court in August 2011 for missing
treatment groups and using alcohol and illegal substances. Later that month, the State again filed
a report of probation violations due to Radford’s failure to complete the outpatient treatment
program, suspension from the family drug court, failure to complete community service, failure
to earn his GED, leaving his assigned district without permission, association with drug users to
purchase illegal drugs, and consumption of alcohol and prescription medications not prescribed
to him. Radford admitted to most of the violations, 1 and after the district court conducted an
evidentiary hearing, it found Radford had committed the remainder of the alleged violations.
The district court then revoked Radford’s probation and executed the suspended sentence.
Radford timely filed an appeal.
       Pending appeal, Radford filed a motion to augment the record and suspend the briefing
schedule, requesting that the record on appeal be augmented with various transcripts. The State
objected to augmenting the record, and the Idaho Supreme Court entered an order denying
Radford’s motion. Upon assignment to this Court, Radford presents two issues: (1) whether the
Idaho Supreme Court denied him due process when it denied his motion to augment the record;
and (2) whether the district court abused its discretion when it failed to sua sponte reduce
Radford’s sentence after it revoked his probation.


1
       Radford admitted to all violations except the failure to complete the outpatient program
and the failure to participate in family drug court.


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                                                 II.
                                          DISCUSSION
A.      Denial of the Motion to Augment the Record
        Radford first argues that the Idaho Supreme Court violated his rights to due process and
equal protection and his right to effective assistance of counsel by denying his motion to
augment the record with transcripts of the plea hearing, the sentencing hearing, the first
probation violation admission hearing, and the first probation violation disposition hearing. We
recently addressed a nearly identical argument in State v. Morgan, ___ Idaho ___, ___ P.3d ___
(Ct. App. July 10, 2012), rev. pending, where we said:
                We begin by disclaiming any authority to review and, in effect, reverse an
        Idaho Supreme Court decision on a motion made prior to assignment of the case
        to this Court on the ground that the Supreme Court decision was contrary to the
        state or federal constitutions or other law. Such an undertaking would be
        tantamount to the Court of Appeals entertaining an “appeal” from an Idaho
        Supreme Court decision and is plainly beyond the purview of this Court.
        Nevertheless, if a motion is, in effect, renewed by the movant, and new
        information or a new or expanded basis for the motion is presented to this Court
        that was not presented to the Supreme Court, we deem it within the authority of
        this Court to evaluate and rule on the renewed motion in the exercise of our
        responsibility to address all aspects of an appeal from the point of its assignment
        to this Court. Such may occur, for example, if the completed appellant’s and/or
        respondent’s briefs have refined, clarified, or expanded issues on appeal in such a
        way as to demonstrate the need for additional records or transcripts, or where new
        evidence is presented to support a renewed motion.
        This is not such a circumstance, as Radford has not filed a renewed motion with this
Court, nor has he presented to this Court any significant new facts or new justification in his
briefs beyond that already advanced in his motion to the Supreme Court. In his motion, Radford
requested the transcripts be augmented to the record because they “are necessary to address
issues to be raised on appeal” and relevant to “not only to the potential merits of the issues but
also to create a complete record on appeal.” In asking this Court to review the Supreme Court’s
denial of his motion, Radford asserts the same general arguments, but also more specifically
asserts the denial of his motion violates his constitutional due process and equal protection
rights. Thus, Radford does not assert new issues in asking us to review the denial of the motion,
but asks that we find that by denying his request, the Idaho Supreme Court violated his
constitutional rights. As this is clearly beyond the authority of this Court, we will not address the
issue further.


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B.     Failure to Sua Sponte Reduce the Sentence after Revoking Probation
       It is within the trial court’s discretion to revoke probation if any terms and conditions of
the probation have been violated. Idaho Code §§ 19-2603, 20-222; State v. Beckett, 122 Idaho
324, 325, 834 P.2d 326, 327 (Ct. App. 1992). In determining whether to revoke probation, a
court must examine whether the probation is achieving the goal of rehabilitation and is consistent
with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App.
1995). The court may, after a probation violation has been established, order that the suspended
sentence be executed. Beckett, 122 Idaho at 325, 834 P.2d at 327. A trial court also has
authority under Idaho Criminal Rule 35 to sua sponte reduce the sentence that was originally
pronounced, and whether to do so is committed to the discretion of the trial court. State v.
McCarthy, 145 Idaho 397, 400, 179 P.3d 360, 363 (Ct. App. 2008).
       Under our abuse of discretion review, a court’s decision not to reduce a sentence after
revoking probation is subject to the well-established standards governing whether a sentence is
excessive. State v. Hanington, 148 Idaho 26, 27, 218 P.3d 5, 7 (Ct. App. 2009); State v. Marks,
116 Idaho 976, 978, 783 P.2d 315, 317 (Ct. App. 1989). Where a sentence is not illegal, the
appellant has the burden to show that it is unreasonably harsh in light of the primary objective of
protecting society and the related goals of deterrence, rehabilitation, and retribution. State v.
Hoskins, 131 Idaho 670, 672, 962 P.2d 1054, 1056 (Ct. App. 1998). In such appeals, an
appellate court will not consider whether the sentence was excessive when originally pronounced
in the judgment of conviction; our review is limited to whether the sentence was excessive in
light of the circumstances existing when the court revoked probation. State v. Jensen, 138 Idaho
941, 944, 71 P.3d 1088, 1091 (Ct. App. 2003); State v. Coffin, 122 Idaho 392, 393-94, 834 P.2d
909, 910-11 (Ct. App. 1992). When reviewing the reasonableness of a sentence on an appeal
from a probation revocation order, we do not base our review only upon events that occurred
after the original pronouncement of sentence, but will examine the entire record, encompassing
events before and after the original judgment, including, but not limited to, events that occurred
during the probationary period. State v. Chavez, 134 Idaho 308, 314, 1 P.3d 809, 815 (Ct. App.
2000); Coffin, 122 Idaho at 394, 834 P.3d at 911.
       Radford does not assign error to the revocation of probation itself, but argues that the
district court erred in failing to sua sponte reduce his sentence upon executing it. Radford asserts
that the burglary was not Radford’s idea, though he went along with it, and the victim even


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admitted that Radford was not a threat to society. When viewed in light of this and other
mitigating factors, including Radford’s alcohol dependence, good character and remorse,
Radford contends the sentence is excessive. The State responds that the principal purpose of
probation is rehabilitation and, finding that Radford was not successfully rehabilitating while on
probation, the district court did not abuse its discretion in executing the suspended sentence
without reduction.
       We find no abuse of discretion by the district court in our review of the record. Within
the first six to seven months of Radford’s probation, Radford’s probation officer referred
Radford to substance abuse treatment. Upon discovering the first set of probation violations, the
probation officer recommended revoking Radford’s probation so that he could take advantage of
treatment programs in the correctional system in order to be successful. To address the issue, the
district court ordered a substance abuse evaluation. As a result of that evaluation, which reported
Radford’s alcohol dependence and recommended an intensive outpatient treatment program, the
probation officer reconsidered his stance and thought continuation of probation with the
outpatient treatment would be a viable option for Radford because Radford was “genuine of his
want to change his behavior.” At the disposition hearing regarding the first probation violations,
Radford requested that he be able to complete substance abuse treatment and he accepted
additional terms of probation: (1) completing an intensive outpatient treatment program; and
(2) participating in problem solving court as directed by his probation officer.
       While Radford initially complied, in July 2010, an order for commitment was filed, and
Radford was ordered to serve fourteen days of discretionary jail time. In October 2010, Radford
was ordered to complete community service at a specified place and time, at risk of being
detained for failure to comply. In May 2011, Radford failed to turn in required reports, missed
his appointment with the probation officer, and was required to serve an additional four days of
discretionary jail time. Just two months later, in July 2011, Radford was required to serve an
additional thirty days of discretionary jail time.     Finally, Radford was removed from the
outpatient program and suspended from family drug court for failing to comply with orders and
continuing to use alcohol and other drugs. In the second filing of probation violations, the
probation officer noted that a higher level of care seemed appropriate due to Radford’s continued
drug use and the need to address his “criminal thinking patterns.”




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       It was evident from testimony at the second probation disposition hearing that Radford
had numerous opportunities to address his substance abuse and other destructive patterns while
serving probation. The district court found that, based on the circumstances, incarceration was
appropriate with a recommendation that Radford be able to participate in the therapeutic
community.
       In arguing that mitigating factors nonetheless show an abuse of discretion, Radford relies
on State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982), where this Court determined that the
defendant’s alcohol dependence was a mitigating factor.            Radford’s reliance on Nice is
misplaced, as Radford does not assert that his criminal behavior was a result of his alcohol use.
Moreover, unlike Nice, here our review includes consideration of whether the sentence is
excessive in light of factors not only surrounding the crime itself, but also in light of Radford’s
actions after the original judgment when the court considered whether probation, with the
primary goal of rehabilitation, continued to be an appropriate sentencing option. Radford is
correct that mental health issues, remorse, family support, and good character can also be
mitigating factors. State v. Payne, 146 Idaho 548, 569-70, 199 P.3d 123, 144-45 (2008) (mental
health issues); State v. Shideler, 103 Idaho 593, 595, 651 P.2d 527, 529 (1982) (good character);
State v. Alberts, 121 Idaho 204, 209, 824 P.2d 135, 140 (Ct. App. 1991) (remorse). Nonetheless,
Radford had nearly three years in working with family drug court to show he could progress
without the need for incarceration. Testimony at the revocation hearing indicated that most
successful participants move through the family drug court much more quickly and Radford’s
drug use seemed to worsen as time passed.
       The maximum sentence for burglary is ten years. I.C. § 18-1403. The district court
initially imposed a unified five-year sentence, with one and one-half years determinate, and in
the execution of that sentence after the probation revocation, we do not find the sentence is
excessive under any reasonable view of the facts. As the principal purpose of probation is
rehabilitation, the district court did not abuse its discretion by not reducing the time to be served
in light of Radford’s multiple probation violations and the finding that Radford would have a
better chance at success under confinement with a recommendation for the therapeutic
community.




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                                              III.
                                       CONCLUSION
       We will not decide whether the Idaho Supreme Court erred in denying Radford’s motion
to augment the record on appeal. As to the issue within our authority to decide, we conclude the
district court did not abuse its discretion by failing to sua sponte reduce Radford’s suspended
sentence after revoking probation. Accordingly, we affirm the district court’s order revoking
probation and executing the suspended sentence of a unified term of five years with one and
one-half years determinate.
       Judge LANSING and Judge MELANSON CONCUR.




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