               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38367

STATE OF IDAHO,                                   )     2012 Unpublished Opinion No. 307
                                                  )
       Plaintiff-Respondent,                      )     Filed: January 4, 2012
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
TIMOTHY JASON DUNBAR,                             )     THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Order relinquishing jurisdiction, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Jordan E. Taylor, 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; LANSING, Judge;
                                  and GUTIERREZ, Judge


PER CURIAM
       Timothy Jason Dunbar pleaded guilty to possession of a controlled substance with the
 intent to deliver, Idaho Code § 37-2732(a), and in return, the State dismissed a charge of driving
 under the influence. The district court imposed a unified four-year sentence with a two-year
 determinate term and placed Dunbar on probation. Subsequently, Dunbar admitted to violating
 several terms of his probation. The district court revoked probation and ordered execution of
 the original sentence but retained jurisdiction pursuant to Idaho Code § 19-2601(4). In doing
 so, the court stated that it was retaining jurisdiction “for evaluation only.” The court continued:
       And by that [“for evaluation only”] what I mean is that I’m not promising
       probation when you come back. Even if you have a perfect rider, I’m not
       promising you probation. I--my intent at this point is for me to retain jurisdiction

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       to insure that you get programming, that you actually get some programming.
       But I’m not promising probation when you come back.

After the district court entered its order retaining jurisdiction, the Department of Correction
placed Dunbar at the Correctional Alternative Placement Program (hereinafter “CAP Program”)
for service of his rider. While in the CAP Program, Dunbar participated in, and ultimately
successfully completed, a number of classes; but he was never offered, and therefore never
participated in or completed, several rehabilitation programs recommended by the district court.
Based on Dunbar’s performance in the three-month CAP Program, the Idaho Department of
Correction recommended that Dunbar be placed on probation.
       At the initial rider review hearing, the district court expressed concern that Dunbar had
not received necessary programming in the CAP Program, reminded Dunbar that the court had
retained jurisdiction “for evaluation only,” and told him that the court was not bound by the
IDOC’s recommendation of probation. After expressing further reservations about Dunbar’s
suitability for probation, the court continued the hearing for one week to allow the court to give
further thought to the matter and to allow Dunbar to present a probation plan. At the conclusion
of the subsequent hearing, the court relinquished jurisdiction and ordered Dunbar’s sentence
executed. On appeal, Dunbar argues that the court abused its discretion when it ordered an
“evaluation only” period of retained jurisdiction, and when it relinquished jurisdiction because
the court was dissatisfied with the programming provided by the IDOC during Dunbar’s rider.
       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. Lee, 117 Idaho 203,
205-06, 786 P.2d 594, 596-97 (Ct. App. 1990).          It follows that a decision to relinquish
jurisdiction will not be disturbed on appeal except for an abuse of discretion. State v. Chapman,
120 Idaho 466, 472, 816 P.2d 1023, 1029 (Ct. App. 1991). The standards governing the trial
court’s decision and our review were explained in State v. Merwin, 131 Idaho 642, 962 P.2d
1026 (1998):
       Refusal to retain jurisdiction will not be deemed a clear abuse of discretion if the
       trial court has sufficient information to determine that a suspended sentence and
       probation would be inappropriate under [the statute]. While a Review Committee
       report may influence a court’s decision to retain jurisdiction, it is purely advisory
       and is in no way binding upon the court. Idaho Code § 19-2521 sets out the
       criteria a court must consider when deciding whether to grant probation or impose



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         imprisonment. . . . A decision to deny probation will not be held to represent an
         abuse of discretion if the decision is consistent with [the § 19-2521] standards.

Id. at 648, 962 P.2d at 1032 (citations and internal quotation marks omitted).
         The purpose of a period of retained jurisdiction is to provide an evaluation of the
offender’s potential for rehabilitation and suitability for probation. State v. Urrabazo, 150 Idaho
158, 161, 244 P.3d 1244, 1247 (2010); State v. Diggie, 140 Idaho 238, 240, 91 P.3d 1142, 1144
(Ct. App. 2004); State v. Goodlett, 139 Idaho 262, 263-64, 77 P.3d 487, 488-89 (Ct. App. 2003).
See also State v. Lutes, 141 Idaho 911, 915, 120 P.3d 299, 303 (Ct. App. 2005) (“The primary
purpose of the retained jurisdiction program is to enable the trial court to gain additional
information regarding the defendant’s rehabilitative potential and suitability for probation.”)
This evaluation necessarily includes observation of Dunbar’s performance in classes and
programming. Since the very purpose of the retained jurisdiction program is to provide the court
with an evaluation of the offender’s potential for rehabilitation and suitability for probation, it
plainly was not an abuse of the district court’s discretion to retain jurisdiction “for evaluation
only.”
         Dunbar argues, however, that the district court’s retention of jurisdiction for evaluation
only amounted to “sending a defendant on a period of retained jurisdiction for the sole purpose
of getting additional programming on the way to prison.” This characterization and argument is
not borne out by the record. Although the district court indicated its desire that Dunbar would
receive certain programming while on retained jurisdiction, the court never indicated that it
would not consider placing Dunbar on probation at the end of the retained jurisdiction period.
To the contrary, the court simply advised Dunbar that it was not promising him probation even if
he successfully completed his rider. It is well settled that a court is not bound, either by the
recommendation of the IDOC or by the defendant’s good performance in the retained
jurisdiction program, to place the defendant on probation at the end of the retained jurisdiction
period. State v. Hurst, 151 Idaho 430, 438, 258 P.3d 950, 958 (Ct. App. 2011); Lutes, 141 Idaho
at 915-16, 120 P.3d at 303-04. Therefore, the court did not abuse its discretion by cautioning
Dunbar that even good performance during retained jurisdiction would not guarantee that he
would receive probation. Further, it is clear from the record that the court did not refuse to
consider probation for Dunbar. To the contrary, the court even continued the rider review




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hearing in order to give further thought to the issue and to allow Dunbar to submit a probation
plan before the court rendered a decision.
        Even if the district court had retained jurisdiction solely for the purpose of ensuring that
Dunbar received certain programming at the outset of his term of imprisonment, that would not
have been an abuse of discretion. At least in circumstances where the court has not agreed to
retain jurisdiction as a term of a binding plea agreement, 1 there is no requirement, by statute or
case law, that a court actually contemplate eventually placing a defendant on probation when it
exercises its authority to retain jurisdiction. See Idaho Code § 19-2601(4).
        Dunbar next argues that the district court acted outside the boundaries of its discretion
“by ignoring separation of powers by not respecting the programming choices of the Department
of Correction.” Dunbar argues that it is within the sole discretion of the IDOC to determine
programming for each offender in the retained jurisdiction program, and for the court to
relinquish jurisdiction because it does not agree with the programming decision of the IDOC
constitutes a violation of the separation of powers. This argument is without merit. The district
court did not attempt to usurp any authority of the IDOC. Rather, the record shows that the court
relinquished jurisdiction based upon its review of Dunbar’s extensive criminal history, his
abysmal performance while on probation, and the court’s determination that the programming
Dunbar received was unlikely to have reformed him and prepared him for success on probation.
        The record in this case shows that the district court properly considered the information
before it, including Dunbar’s performance during retained jurisdiction and the IDOC
recommendation of probation, and determined that probation was not appropriate. We therefore
hold that the district court did not abuse its discretion in relinquishing jurisdiction.
        The district court’s order relinquishing jurisdiction is affirmed.




1
        See Lutes, 141 Idaho at 915, 120 P.3d at 303.

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