               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44126

STATE OF IDAHO,                                )   2017 Unpublished Opinion No. 380
                                               )
       Plaintiff-Respondent,                   )   Filed: February 22, 2017
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
DAVID EUGENE BOWEN,                            )   THIS IS AN UNPUBLISHED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. John T. Mitchell, District Judge.

       Order revoking probation, affirmed; order denying Idaho Criminal Rule 35
       motion for reduction of sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, 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; GUTIERREZ, Judge;
                                 and HUSKEY, Judge
                  ________________________________________________

PER CURIAM
       David Eugene Bowen pled guilty to sexual battery of a child sixteen years of age, Idaho
Code § 18-1508 (Count I), and sexual abuse of children under the age of sixteen years, I.C. § 18-
1508A (Count II). In exchange for his guilty plea, additional charges were dismissed. The
district court imposed a unified life sentence, with a minimum period of confinement of three
years, on Count I, suspended the sentence and placed Bowen on probation. On Count II, the
district court imposed a concurrent unified sentence of seven years, with a minimum period of
confinement of three years, and retained jurisdiction. Bowen completed retained jurisdiction and
served the entirety of his seven-year sentence for Count II. He was placed on probation and

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subsequently admitted to violating the terms of the probation. The district court consequently
revoked probation and ordered execution of the original sentence in Count I. Bowen filed an
Idaho Criminal Rule 35 motion for reduction of sentence, which was denied. Bowen appeals,
contending that the district court abused its discretion in revoking probation and in denying his
Rule 35 motion.
       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 I.C.R. 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. I.C. § 19-2601. 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.
       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). Upon review of the
record, including any new information submitted with Bowen’s Rule 35 motion, we conclude no



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abuse of discretion has been shown. Therefore, the district court’s order denying Bowen’s
Rule 35 motion is affirmed.
       Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either in revoking probation or in denying
Bowen’s motion for reduction of sentence.         Therefore, the order revoking probation and
directing execution of Bowen’s previously suspended sentence is affirmed.




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