                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40847

STATE OF IDAHO,                                   )      2014 Unpublished Opinion No. 609
                                                  )
       Plaintiff-Respondent,                      )      Filed: July 3, 2014
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
ALBERTO VARELA-TEMA,                              )      THIS IS AN UNPUBLISHED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. Joel E. Tingey, District Judge.

       Judgment of conviction for felony driving under the influence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Alberto Varela-Tema appeals from his judgment of conviction for felony driving under
the influence entered pursuant to a conditional guilty plea. Specifically, he challenges the district
court’s denial of his motion to dismiss the information, arguing the officer lacked probable cause
to support a warrantless arrest. Valera-Tema also challenges the sentence imposed as being
excessive. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Valera-Tema was convicted of felony driving under the influence (DUI). Idaho Code
§§ 18-8004, 18-8005(6). Prior to his conviction, Valera-Tema waived his right to a preliminary
hearing and was bound over to the district court. Valera-Tema proceeded to file a motion to
dismiss asserting the arresting officer lacked probable cause to arrest him for DUI as he was
parked in a private residential driveway. The district court ruled that although a portion of



                                                 1
Valera-Tema’s car was upon private property exempt from the DUI statute, a portion of his car
was in the trailer park’s roadway, which was open to the public whereby he was subject to the
DUI statute. The State and Valera-Tema then entered into a conditional plea agreement. It
provided that Valera-Tema would plead guilty to felony DUI, conditioned on being able to
withdraw that guilty plea in the event the Idaho Supreme Court or Idaho Court of Appeals
reverses the district court’s order denying Valera-Tema’s motion for dismissal or otherwise
remands the case back to the district court for further proceedings. Valera-Tema pled guilty, was
sentenced to a unified term of eight years with two years determinate, and timely appealed.
                                                II.
                                         DISCUSSION
       In this appeal, Valera-Tema raises issues of whether the district court erred when it
denied his motion to dismiss the case for lack of probable cause to support the warrantless arrest,
requiring the case be remanded for the district court to make a factual finding as to whether his
car was “upon the road” in the trailer park, and whether the district court abused its discretion
when it imposed a unified sentence of eight years with two years determinate following his plea
of guilty to felony DUI. The State rephrases the issue on the motion to dismiss as to whether
Valera-Tema, by waiving his right to a preliminary hearing, admitted the existence of sufficient
evidence to determine there was probable cause to support the warrantless arrest for DUI.
A.     Motion to Dismiss for Lack of Probable Cause
       This Court reviews a district court’s decision on a motion to dismiss a criminal action for
an abuse of discretion. State v. Martinez-Gonzalez, 152 Idaho 775, 778, 275 P.3d 1, 4 (Ct. App.
2012); see Idaho Criminal Rule 48(a). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower
court correctly perceived the issue as one of discretion; (2) whether the lower court acted within
the boundaries of such discretion and consistently with any legal standards applicable to the
specific choices before it; and (3) whether the lower court reached its decision by an exercise of
reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
        This case was commenced by the State filing a criminal complaint.             Because the
complaint alleged that Valera-Tema had committed the crime of felony DUI, he had a right to a
preliminary hearing. IDAHO CONST. Art. I, § 8; I.C. § 19-804; I.C.R. 5.1; State v. Stewart, 149
Idaho 383, 387, 234 P.3d 707, 711 (2010).         The purpose of the preliminary hearing is to


                                                2
determine whether there is probable cause to believe that a felony was committed by the person
charged. Stewart, 149 Idaho at 387, 243 P.3d at 711. Probable cause is the possession of
information that would lead a person of ordinary care and prudence to believe or entertain an
honest and strong presumption that the person placed under arrest is guilty of a crime. See State
v. Julian, 129 Idaho 133, 136, 922 P.2d 1059, 1062 (1996). A waiver of a preliminary hearing
by a person accused of a crime operates as an admission of the existence of probable cause
justifying that the accused be held for trial. State v. Hendricks, 80 Idaho 344, 348, 330 P.2d 334,
336 (1958). As the Idaho Supreme Court articulated in Hendricks:
                In cases where a defendant, accused of a public offense triable in the
       district court, waives preliminary hearing, no depositions to support the charge in
       the district court are required. The accused in such circumstances is held to
       answer for the crime charged in the criminal complaint filed with the committing
       magistrate. If an accused desires testimony taken before the committing
       magistrate, he could, by demanding, secure a preliminary hearing, and ascertain
       the facts on which the charge was based. Respondent having waived such
       hearing, he is not now in a position to complain. Where a preliminary hearing is
       had the information thereafter filed in the district court does not depend on the
       complaint filed with the committing magistrate but on the commitment and the
       facts shown by the preliminary hearing.

Id. Here, Valera-Tema, having waived his right to a preliminary hearing, admitted the existence
of sufficient evidence to find there was probable cause to believe he committed the crime of
felony DUI.
       Therefore, the district court was correct in denying Valera-Tema’s motion to dismiss.
Although the district court did not deny Valera-Tema’s motion on the aforementioned basis, we
affirm the denial on the correct theory. Stewart, 149 Idaho at 388, 234 P.3d at 712. Because we
have concluded that Valera-Tema admitted the existence of probable cause to support his arrest
for felony DUI when he waived his right to a preliminary hearing, we need not address
Valera-Tema’s argument regarding the statutory interpretation of Idaho Code § 18-8004.
B.     Sentencing
       Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the 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


                                                3
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). Applying these standards, and having reviewed the record
in this case, we cannot say that the district court abused its discretion in imposing a unified
sentence of eight years with two years determinate for felony DUI.
                                                III.
                                         CONCLUSION
       The district court properly denied Valera-Tema’s motion to dismiss for lack of probable
cause because he admitted the existence of probable cause when he waived his right to a
preliminary hearing. Furthermore, the record reflects the district court acted within its discretion
when it imposed a unified sentence of eight years with two years determinate for felony DUI.
Therefore, Valera-Tema’s judgment of conviction and sentence are affirmed.
       Judge LANSING and Judge GRATTON CONCUR.




                                                 4
