                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket Nos. 40678/40679

STATE OF IDAHO,                                     )      2014 Unpublished Opinion No. 581
                                                    )
        Plaintiff-Respondent,                       )      Filed: June 23, 2014
                                                    )
v.                                                  )      Stephen W. Kenyon, Clerk
                                                    )
VIRGIL JAMES HECK,                                  )      THIS IS AN UNPUBLISHED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. Randy J. Stoker, District Judge.

        Orders revoking probation and executing underlying sentences, affirmed.

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

        Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
        Attorney General, Boise, for respondent.
                  ________________________________________________

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

PER CURIAM
        Virgil   James    Heck     pled    guilty   to   possession    of   a   controlled   substance
(methamphetamine), Idaho Code § 37-2732(c)(1). As part of the plea agreement, the district
court sentenced Heck to a unified term of six years, with two years determinate, but suspended
the sentence and placed Heck on probation. Subsequently, Heck incurred new criminal charges,
which constituted a violation of his probation. Pursuant to a plea agreement, Heck pled guilty to
possession of a controlled substance (methamphetamine), I.C. § 37-2732(c)(1), in the second
case and admitted to a probation violation in his previous case. The district court sentenced
Heck to a unified term of seven years, with three years determinate, to run consecutively to
Heck’s sentence in the first case. After revoking Heck’s probation and executing the underlying
sentence in the first case, the district court also retained jurisdiction in both cases.

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          Upon review of the period of retained jurisdiction, the district court suspended Heck’s
sentences and placed him on probation in both cases. Shortly thereafter, Heck admitted to
violating his probation. The district court consequently revoked probation and executed the
underlying sentences without reduction in both cases. The two cases were consolidated on
appeal.
          After filing this appeal, and before assignment to this Court, Heck filed a motion to
augment the record with additional transcripts. The State objected in part and the Idaho Supreme
Court entered an order granting Heck’s motion in part and denying Heck’s motion in part as to
some of the requested transcripts. Heck then filed a renewed motion to augment the record with
the denied transcripts, which the State objected to. The Idaho Supreme Court entered an order
denying Heck’s motion.
          On appeal Heck argues that the Idaho Supreme Court denied him due process, equal
protection, and effective assistance of counsel by denying his renewed motion to augment the
record. Heck also contends that the district court abused its discretion by revoking probation and
executing his sentences without reduction.
A.        Denial of Renewed Motion to Augment Record
          Heck asks this Court to hold that the Idaho Supreme Court deprived him of due process,
equal protection, and effective assistance of counsel when it denied his renewed motion to
augment the record. We do not, however, have the authority to review and, in effect, reverse an
Idaho Supreme Court decision on a motion made prior to assignment of the case to this Court on
the ground that the Supreme Court decision was contrary to the state or federal constitutions or
other law. See State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such
an undertaking would be tantamount to the Court of Appeals entertaining an appeal from an
Idaho Supreme Court decision and is plainly beyond the purview of this Court. Id. If a motion
is renewed by the movant and new information or a new or expanded basis for the motion is
presented to this Court that was not presented to the Supreme Court, we deem it within the
authority of this Court to evaluate and rule on the renewed motion in the exercise of our
responsibility to address all aspects of an appeal from the time of assignment to this Court. Id.
Such may occur if the appellant’s or respondent’s briefs have refined, clarified, or expanded
issues on appeal in such a way as to demonstrate the need for additional records or transcripts, or
where new evidence is presented to support a renewed motion. Id.


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       Heck has not filed with this Court a renewed motion to augment the record or presented
to this Court in his briefing any significant new facts or a new justification for augmentation
beyond that already advanced in his motion to the Supreme Court. In essence, Heck asks us to
determine that the Idaho Supreme Court violated constitutional law by denying his motion.
       We adhere to our conclusion in Morgan that reviewing the denial of a motion to augment
the record by the Supreme Court is beyond the scope of our authority. If a party files a renewed
motion after the case assignment to this Court and presents new information or justification for
the motion, we have the authority to rule on the motion. Heck had an opportunity to present his
constitutional arguments to the Supreme Court and that Court denied his motions. He has no
right to appeal that denial to the Idaho Court of Appeals, and we have no authority to consider
such an appeal.
B.     Revocation of Probation and Review of Sentences
       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 is 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). 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. Morgan, 153 Idaho at 621, 288 P.3d at 838. Thus, this Court will consider
the elements of the record before the trial court relevant to the revocation of probation issues that
are properly made part of the record on appeal. Id.
       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


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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 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. Thus, this Court will
consider the elements of the record before the trial court that are properly made part of the record
on appeal and are relevant to the defendant’s contention that the trial court should have reduced
the sentence sua sponte upon revocation of probation. Morgan, 153 Idaho at 621, 288 P.3d at
838.
       Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion in revoking probation. Assuming Heck can
challenge the district court’s failure to sua sponte reduce his sentences, we also conclude that the
district court did not err in ordering execution of Heck’s underlying sentences without reduction.
Therefore, the orders revoking probation and executing Heck’s underlying sentences are
affirmed.




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