                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 38779

STATE OF IDAHO,                                    )     2012 Unpublished Opinion No. 689
                                                   )
       Plaintiff-Respondent,                       )     Filed: October 24, 2012
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
ACE BRANDON NICHOLS,                               )     THIS IS AN UNPUBLISHED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,
       Fremont County. Hon. Gregory W. Moeller, District Judge.

       Order modifying sentence pursuant to I.C.R. 35 motion for reduction, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, 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; LANSING, Judge;
                                  and MELANSON, Judge

PER CURIAM
       Ace Brandon Nichols was convicted of rape, Idaho Code § 18-6101(1). The district court
imposed a unified sixteen-year sentence with six years determinate. Nichols filed an Idaho
Criminal Rule 35 motion, which the district court granted by reducing the indeterminate portion
to fifteen years. Nichols appeals, contending that the district court abused its discretion in failing
to further reduce his sentence pursuant to his I.C.R. 35 motion.
       Initially, we note that a lower court’s decision to grant or deny a Rule 35 motion will not
be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126 Idaho 277, 281,
882 P.2d 444, 448 (Ct. App. 1994). Both our standard of review and the factors to be considered
in evaluating the reasonableness of the sentence are well established. See State v. Hernandez,


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121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.
App. 1984); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982). Since the district
court later modified Nichols’ sentence, pursuant to his Rule 35 motion, we will review only
Nichols’ modified sentence for an abuse of discretion. See State v. McGonigal, 122 Idaho 939,
940-41, 842 P.2d 275, 276-77 (1992).
       Nichols has the burden of showing a clear abuse of discretion on the part of the district
court in failing to further reduce the sentence on Nichols’ Rule 35 motion. See State v. Cotton,
100 Idaho 573, 577, 602 P.2d 71, 75 (1979). Nichols has failed to show such an abuse of
discretion. Accordingly, the order of the district court granting Nichols’ Rule 35 motion is
affirmed.




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