               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                  Docket Nos. 40006/40009

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 497
                                                )
       Plaintiff-Respondent,                    )     Filed: May 17, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
JASON TERRY DEEMS,                              )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

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

       Order revoking probation and requiring execution of unified five-year sentence
       with three-year determinate term for possession of marijuana, and consecutive
       twenty-year unified sentence with two years determinate for possession of
       oxycodone with intent to deliver, affirmed; order denying I.C.R. 35 motion,
       affirmed.

       Stephen D. Thompson, Ketchum, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

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

PER CURIAM
       In these consolidated appeals, Jason Terry Deems pled guilty to possession of marijuana
(Docket No. 40006). Idaho Code § 37-2732(c). The district court imposed a unified five-year
sentence with a three-year determinate term, suspended the sentence and placed Deems on
probation for a period of five years. Approximately one year later, Deems was charged with
possession of a controlled substance with intent to deliver and concealment of evidence, as well
as violating probation (Docket No. 40009). Deems pled guilty and the district court revoked
probation in Docket No. 40006, executed the original unified five years with three years
determinate sentence, and retained jurisdiction. In Docket No. 40009, the district court imposed

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a unified twenty-year sentence with two years determinate to be served consecutive to the
sentence in Docket No. 40006, and retained jurisdiction. After a period of retained jurisdiction,
the district court suspended the sentences in both cases and placed Deems on probation for five
years.   After another probation violation, the district court again retained jurisdiction and,
following the period of retained jurisdiction, suspended Deems’ sentences, again placing him on
probation. Subsequently, Deems again admitted to violating several terms of his probation, and
the district court consequently revoked probation and ordered execution of the original sentences
to run consecutively. Deems filed an Idaho Criminal Rule 35 motion for reconsideration of
sentences, which the district court denied.
         Deems appeals, contending that the district court abused its discretion in revoking
probation and by denying his Rule 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.




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       Sentencing is also a matter for the trial court’s discretion. Both our standard of review
and the factors to be considered in evaluating the reasonableness of a 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); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).
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).
       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 the 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
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). An appeal from the
denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent
the presentation of new information. Id. Because no new information in support of Deems’
Rule 35 motion was presented, review of the sentence by this Court is precluded.
       Applying the foregoing standards, and having reviewed the records in these cases, we
cannot say that the district court abused its discretion either in revoking probation or in ordering
execution of Deems’ original sentences without modification. Therefore, the order revoking
probation and directing execution of Deems’ previously suspended sentences and the order
denying Deems’ Rule 35 motion are affirmed.




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