               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42703

STATE OF IDAHO,                                 )   2016 Unpublished Opinion No. 354
                                                )
       Plaintiff-Respondent,                    )   Filed: January 28, 2016
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
ADAM BARTH,                                     )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Order revoking probation and executing previously suspended sentence, affirmed;
       order denying I.C.R. 35 motion for reduction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Adam Barth appeals from the district court’s order revoking probation and executing the
sentence previously imposed upon Barth’s conviction for felony injury to a child and from the
district court’s denial of his I.C.R. 35 motion for reduction of sentence. Barth argues that the
district court erred in revoking his probation based, in part, on his failure to complete a sex
offender treatment program. Specifically, Barth contends that his violation was not willful and
that the district court failed to analyze the issue under the proper legal standard. He further
asserts that the district court did not recognize the full scope of its discretion when it revoked
Barth’s probation.   Additionally, Barth argues that the district court erred in denying his
I.C.R. 35 motion for reduction of sentence. For the reasons set forth below, we affirm.



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                                                 I.
                                  FACTS AND PROCEDURE
       Barth pled guilty to injury to child. I.C. § 18-1501(1). The district court sentenced Barth
to a unified term of six years, with a minimum period of confinement of two years. The sentence
was suspended but the district court retained jurisdiction. Following the period of retained
jurisdiction, the district court suspended the sentence and placed Barth on probation for five
years. Approximately, two months after being placed on probation, Barth admitted to violating a
condition of his probation, for which the district court revoked but then reinstated Barth’s
probation.   Approximately three months later, the state filed a second report of probation
violation. At the probation violation hearing, Barth admitted to violating his probation by
possessing a pipe with a substance testing positive for Spice. The district court then proceeded
to hold an evidentiary hearing with regard to the state’s other allegations of Barth’s violation of
his probation. Following presentation of evidence and witness testimony, the district court found
that Barth violated the terms of his probation by being discharged from sex offender treatment.1
Prior to disposition, the district court ordered a neuropsychological evaluation which concluded
that Barth had neurodevelopmental issues.
       At an extensive disposition hearing, Barth requested that he remain on probation and be
admitted to a different personalized supervision and treatment program based on his intellectual
difficulties. The district court concluded that probation was not working based on numerous
treatment failures and rule infractions going back to the period of retained jurisdiction.
Consequently, the district court revoked Barth’s probation and ordered execution of Barth’s
original sentence. Barth filed a Rule 35 motion for reduction of his sentence. The district court
denied Barth’s motion, concluding that Barth’s newly proposed treatment program was similar to
the program the district court considered and rejected at the disposition hearing. Barth appeals.




1
         The district court also found that Barth did not violate his probation by possessing a knife
at his living facility.

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                                               II.
                                          ANALYSIS
A.     Probation Revocation
       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.
       Idaho Code Section 20-222 provides that “the court may issue a warrant for violating any
of the conditions of probation or suspension of sentence and cause the defendant to be arrested.
Thereupon the court . . . may revoke the probation and suspension of sentence and cause the
sentence imposed to be executed.” Further, Idaho Criminal Rule 33(f)2 provides:
              The court shall not revoke probation except after a hearing at which the
       defendant shall be present and apprised of the grounds on which such action is


2
        Effective July 1, 2015, Idaho Criminal Rule 33(e) was renumbered as I.C.R. 33(f). The
current version of the rule was enacted in February 9, 2012.

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       proposed. The defendant may be admitted to bail pending such hearing. The
       court shall not revoke probation unless there is an admission by the defendant or a
       finding by the court, following a hearing, that the defendant willfully violated a
       condition of probation.

       On appeal, Barth argues that the district court erred when it revoked his probation based,
in part, on his failure to complete the sex offender treatment program. Barth asserts that this
violation was not willful given his intellectual difficulties. Barth also contends that the district
court erred by applying the incorrect legal standard to determine whether it could revoke Barth’s
probation. However, in this case, Barth expressly admitted to the district court that he violated
his probation by possessing a pipe with a substance testing positive for Spice. Further, Barth
admitted that he was aware that this constituted a violation under the probation agreement.
Because Barth admitted to this probation violation, it alone provided a sufficient basis to support
the district court’s order revoking probation. Thus, we do not address Barth’s other arguments
regarding his alleged probation violations. Accordingly, we hold that the district court did not
err in revoking Barth’s probation.
B.     Rule 35
       Barth argues that the district court erred in denying his Rule 35 motion for reduction of
sentence. Specifically, Barth contends that the district court failed to recognize the scope of its
discretion to tailor the terms of probation to meet Barth’s individual needs and thus, failed to
consider a specialized program designed to treat individuals like Barth.
       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). 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).
       In his Rule 35 motion, Barth presented the district court with information about a new
program that would administer specialized treatment for Barth. Barth urged the district court to

                                                 4
consider the program and place him on probation in a residence that administered the program.
In denying Barth’s Rule 35 motion, the district court noted that it was aware of Barth’s character,
prior criminal record, and nature of the underlying offense. The district court determined that, at
the probation violation disposition hearing, it had previously considered and rejected a similar
treatment program based on evidence regarding the specialized program and based on the
broader context of the information before it. Likewise, the district court concluded that the new
program presented in Barth’s Rule 35 motion did not change its decision regarding the
disposition of Barth’s probation violations. Therefore, having reviewed the record, we hold that
Barth has failed to show that the district court erred in denying his Rule 35 motion.
                                                III.
                                         CONCLUSION
       The district court did not abuse its discretion when it revoked Barth’s probation and
imposed the original sentence. The district court did not abuse its discretion in denying Barth’s
Rule 35 motion. Therefore, we affirm the district court’s orders revoking probation and in
denying Barth’s Rule 35 motion for reduction of his sentence.
       Judge GRATTON and Judge HUSKEY, CONCUR.




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