               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40499

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 793
                                                  )
       Plaintiff-Respondent,                      )     Filed: December 18, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
DWAYNE JOSEPH FARR,                               )     THIS IS AN UNPUBLISHED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. Benjamin R. Simpson, District Judge.

       Judgment of conviction and unified sentence of eight years, with a minimum
       period of confinement of three years, for domestic battery, affirmed; order
       denying I.C.R. 35 motion, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Dwayne Joseph Farr appeals from his judgment of conviction and sentence for felony
domestic violence, Idaho Code § 18-918. Specifically, Farr challenges the district court’s failure
to sua sponte order a psychological evaluation before sentencing, the district court’s decision to
relinquish its retained jurisdiction, and the denial of his Idaho Criminal Rule 35 motion.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In the presence of children, Farr slapped his wife three times in the face, hitting her in the
nose and mouth. He grabbed her by the throat and threw her against the wall. Farr placed his
elbow against his wife’s throat; she could not breathe and she began trying to gasp for air. Farr
then dragged his wife by her hair around the living room. When he finally let go, she was able to
get the children out of the house. As the kids entered the vehicle, Farr approached his wife with


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a kitchen knife and said that it was “over” for her. She ran out of the house and locked herself in
the vehicle with the kids.   Farr jumped on the vehicle in an attempt to keep the vehicle from
leaving. After accelerating and breaking several times, Farr fell off and his wife was able to
safely get away. When officers found Farr he smelled of alcohol and slurred his speech.
       The State charged Farr with felony domestic violence, attempted strangulation, and
aggravated assault. The court entered a no-contact order prohibiting Farr from contacting his
wife. Farr pled guilty to the domestic battery charge and the State dismissed the other charges.
The State agreed to recommend probation and local jail time if Farr was able to comply with the
terms of the plea agreement; however, while on release, Farr violated the no-contact order twice.
At sentencing, the district court imposed a term of eight years, with three years determinate. The
court retained jurisdiction and recommended placement in the therapeutic community program.
Farr again had a no-contact order in place while he was on retained jurisdiction. Farr’s wife
testified at the jurisdiction review hearing that while Farr was on his retained jurisdiction
program he called her almost every day, several times a day. An officer also testified that Farr
acknowledged making phone calls to his wife. The district court relinquished jurisdiction and
executed Farr’s sentence. Subsequently, Farr filed a Rule 35 motion for leniency, which the
district court denied. Farr timely appeals.
                                                 II.
                                              ANALYSIS
       Farr alleges the district court committed manifest disregard of Idaho Criminal Rule 32
and Idaho Code § 19-2522 when it failed to sua sponte order a psychological evaluation before
sentencing. Farr failed to timely object. Pursuant to the Idaho Supreme Court’s recent decision
in State v. Carter, 155 Idaho 170, 173, 307 P.3d 187, 190 (2013), Farr has failed to show
fundamental error under State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010). Failure to order a
psychological evaluation is a statutory matter that requires a timely objection.
       Farr also argues the district court abused its discretion when it relinquished its retained
jurisdiction over him without sentence modification. The decision to place a defendant on
probation or whether, instead, to relinquish jurisdiction over the defendant is a matter within the
sound discretion of the district court and will not be overturned on appeal absent an abuse of that
discretion. State v. Hood, 102 Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho
203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990). Farr claims the district court abused its


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discretion because he was completing the Correctional Alternative Placement Program (CAPP),
and when he was told to stop violating the no-contact order that he stopped. Farr’s success in
treatment and programming do not diminish the real concern raised by Farr’s continued refusal
to abide by the no-contact order. Farr twice failed to comply with the no-contact order before the
court retained jurisdiction, and Farr subsequently continued to ignore the court’s order calling his
wife daily. Farr’s continued violation of the no-contact order establishes the district court acted
well within its discretion when it relinquished jurisdiction and executed Farr’s sentence without
reduction.
       Finally, Farr contends the district court abused its discretion when it denied his Idaho
Criminal Rule 35 motion to reduce his sentence. 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. Gill, 150 Idaho 183, 186, 244
P.3d 1269, 1272 (Ct. App. 2010). 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). In conducting our review of the grant or denial of a Rule 35 motion, we consider the
entire record and apply the same criteria used for determining the reasonableness of the original
sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106
Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984).
       Farr alleges the district court failed to properly consider his mental health, absence of a
lengthy criminal record, his substance abuse problem with alcohol, and his remorse as mitigating
factors. This information was before the district court at sentencing. The only new information
Farr offered at his Rule 35 hearing was testimony that he had completed a Moral Reconation
Therapy (MRT) program, and an anger management program after the court had executed his
sentence. Farr indicated the MRT program changed his way of thinking that he felt considerable
remorse, and that he was using what he learned during the programs to help vent his anger and
make healthy choices. However, while considering this new information, the district court
properly considered the circumstance of the original offense. At sentencing, the district court
described the factual circumstances of the assault as shocking and alarming. In denying Farr’s
motion the district court explained:




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               Mr. Farr, the Court has considered your Rule 35 motion. I went a long
       ways towards having a contested extended hearing on why you got relinquished.
       Or on why you should be relinquished. I’ve considered the sentence. I’ve
       reconsidered the PSI today, both your version and the victim’s version of what
       happened.
              Since the outset I have considered this to be a fairly serious domestic
       violence case. That’s reflected in the sentence. It is discretionary with the Court
       whether to grant you some sort of relief from that. I am going to deny the motion
       today.

The district court reviewed the mitigating information offered by Farr, but, based upon other
information in the record, and due to the serious nature of the crime, the court denied Farr’s
motion. Further, Farr violated the no-contact order both before sentencing and during retained
jurisdiction. Applying the standards set forth above, we cannot say that the district court abused
its discretion in denying Farr’s Rule 35 motion for leniency.
                                               III.
                                        CONCLUSION
       This Court will not review the lack of a psychological evaluation because Farr failed to
preserve the issue by objection. Additionally, the district court did not abuse its discretion in
relinquishing jurisdiction and executing Farr’s sentence without modification or denying Farr’s
Rule 35 motion. Therefore, Farr’s judgment and conviction and sentence and the district court’s
order denying Farr’s Rule 35 motion are affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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