               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 40073

STATE OF IDAHO,                                )     2013 Unpublished Opinion No. 809
                                               )
       Plaintiff-Respondent,                   )     Filed: December 31, 2013
                                               )
v.                                             )     Stephen W. Kenyon, Clerk
                                               )
LAWRENCE JAMES CROW,                           )     THIS IS AN UNPUBLISHED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,
       Bingham County. Hon. Darren B. Simpson, District Judge.

       Judgment of conviction and sentence for attempted first degree murder and
       accompanying order imposing fine, modified; order denying I.C.R. 35 motion for
       reduction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Lawrence James Crow appeals from his judgment of conviction and sentence for
attempted first degree murder and the order imposing a fine under I.C. § 19-5307. Crow also
appeals from the district court’s order denying his I.C.R. 35 motion for reduction of sentence.
For the reasons set forth below, we affirm Crow’s term of imprisonment and the denial of the
I.C.R. 35 motion, but modify the fine imposed under I.C. § 19-5307.
                                              I.
                                FACTS AND PROCEDURE
       In July 2010, officers responded to a shooting involving Crow and his ex-girlfriend
(victim). Crow and the victim dated for approximately six years and separated around one
month prior to the shooting. Crow and the victim had a child together and, at the time, were
sharing custody. On the day of the shooting, Crow had custody of the child (at Crow’s mother’s


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residence) and was to return the child to the victim around noon. The victim observed Crow pull
into her driveway that day. However, instead of dropping off the child, Crow backed up and left.
The victim indicated that normally she would have been alone, but that day her mother was at
her residence. The victim later surmised Crow had seen her mother’s car in the driveway and
left.
        A short time thereafter, the victim drove to Crow’s mother’s residence to pick up the
child. When the victim arrived, Crow desired to talk about their relationship and the victim
agreed. While talking on the front porch, the victim realized Crow had been drinking and
decided to leave. The victim attempted to open the front door to retrieve her child, but found the
door was locked and so she knocked. Because Crow was acting aggressively, the victim dialed
911 on her cell phone but did not send the call initially. Crow then drew a handgun from his
pants and stated to the victim, “If I can’t have you, no one can.” Crow also stated “I got this for
you” in a threating manner while pointing the gun at the victim. By this time, the front door had
been unlocked by someone within the house. The victim fled into the house and dialed 911.
Crow pursued her. Crow again pointed the gun into the victim’s face and chest, and the victim
pushed the gun away. Crow fired the gun, wounding the victim in the arm.
        The victim retreated into a bathroom and locked the door. The victim heard one or two
additional shots. One of these shots went through the bathroom door, although missing the
victim. Crow subsequently gained entry into the bathroom. In desperation, the victim began
hugging Crow, telling him that she would come back to him. Crow loosened his grip on the gun
and the victim seized it and turned it over to Crow’s sister. Police arrived shortly thereafter.
        The state charged Crow with attempted murder in the first degree, I.C. §§ 18-4001, 18-
4002, 18-4003(a), 18-4004 and 18-306; domestic battery involving traumatic injury in the
presence of children, I.C. §§ 18-918(2)(a) and (b) and 18-918(4); use of a firearm in the
commission of a crime, I.C. § 19-2520; and infliction of great bodily injury, I.C. § 19-2520B.
Crow agreed to plead guilty to attempted first degree murder and the state agreed to dismiss the
remaining charge and the enhancements. The district court imposed a unified term of fifteen
years, with a minimum period of confinement of nine years. The district court also imposed a
$5000 fine pursuant to I.C. § 19-5307.        Crow subsequently filed an I.C.R. 35 motion for
reduction of sentence and the district court denied the motion. Crow appeals.




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                                                II.
                                           ANALYSIS
A.      Fines Imposed for Crimes of Violence
        Crow argues the district court erred by imposing a fine of $5000 to operate as a civil
judgment in favor of the victim. The state argues that this issue is not properly preserved for
appeal. The state concedes that, if this Court were to reach the merits, the fine was in error.
However, the state contends the remedy should be to reduce the award to the maximum amount
permitted by statute ($2500).
        We initially address the state’s argument that this issue is not properly preserved for
appeal. Specifically, the state contends that, because Crow did not raise this issue in his I.C.R.
35 motion, the district court was deprived of an opportunity to correct any alleged error and
Crow is precluded from raising it in the first instance on appeal. However, I.C. § 19-5307
provides that “a defendant may appeal a fine created under this section in the same manner as
any other aspect of a sentence imposed by the court.” This provision allows Crow to challenge
the fine without first having to raise it in an I.C.R. 35 motion for correction of an illegal
sentence. 1
        Turning to the underlying issue, I.C. § 19-5307 provides, in pertinent part:
                 (1)     Irrespective of any penalties set forth under state law, and in
        addition thereto, the court, at the time of sentencing or such later date as deemed
        necessary by the court, may impose a fine not to exceed five thousand dollars
        ($5,000) against any defendant found guilty of any felony listed in subsection (2)
        of this section.
                 The fine shall operate as a civil judgment against the defendant, and shall
        be entered on behalf of the victim . . .

Subsection (2) lists murder under I.C. § 18-4001 as one of the qualifying crimes. Idaho Code
Section 18-306 provides:
                Every person who attempts to commit any crime, but fails, or is prevented
        or intercepted in the perpetration thereof, is punishable, where no provision is
        made by law for the punishment of such attempts, as follows:
        ....
        (4)     If the offense so attempted is punishable by a fine, the offender convicted
        of such attempt is punishable by a fine not exceeding one-half (1/2) the largest
        fine which may be imposed upon a conviction of the offense so attempted.


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        Crow could have objected or filed a Rule 35 motion challenging the legality of the fine.

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Read together, these two statutes create a maximum fine under I.C. § 19-5307 of $2500 in cases
of attempted first degree murder. Crow argues that I.C. § 19-5307 is devoid of any language
regarding attempts and defendants convicted of attempted violent crimes are not subject to fines
under that section. However, this argument is unavailing because it ignores one of the operative
statutes at issue here--I.C. § 18-306(4). This statute unequivocally authorizes a fine of up to one-
half of what the completed offense would allow. There is no ambiguity when the two statutes
are read in conjunction with one another. Therefore, because the district court erred in imposing
a $5000 fine, we modify that fine to $2500 in accordance with I.C. § 18-306.
B.       Sentence Review
         Crow argues his sentence is excessive. An appellate review of a sentence is based on an
abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App.
2000).    Where a sentence is not illegal, the appellant has the burden to show that it is
unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825
P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be
unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324
(1982). A sentence of confinement is reasonable if it appears at the time of sentencing that
confinement is necessary “to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a
given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (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).
         Crow specifically asserts the following mitigating factors demonstrate the district court
abused its discretion: this was Crow’s first felony offense, Crow was only twenty-two years of
age at the time of the crime, Crow has strong family support, Crow has a good work history,
Crow was recently diagnosed with bi-polar disorder, Crow suffers from substance abuse
problems but wants to live a sober life, Crow demonstrated remorse for this crime, and the
psychological evaluator opined that Crow is not a danger to the general public.


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        Despite Crow’s assertion, the record demonstrates the district court considered these
mitigating factors, but was primarily concerned with protection of society, followed then by
punishment and rehabilitation. The district court recognized the premeditated nature of this
crime. Crow obtained the gun; pointed it at the victim; told the victim it was for her; and stated
if Crow could not have the victim, no one else could. Crow then shot the victim and also shot
through the bathroom door where the victim was hiding. In addressing Crow’s mental health
diagnosis, the district court recognized that without treatment, when confronted with the same
situation, there is concern that this would happen again. The district court further considered
Crow’s substance abuse issues and found it troubling that Crow had prior criminal offenses
involving alcohol and that the current charge arose while Crow was on misdemeanor probation.
The district court indicated the best place for Crow to receive effective treatment for his mental
health and substance abuse issues was in a confined setting. The district court also considered
family support and recognized that this would be important when it came to rehabilitative efforts.
However, as noted above, the focus of the district court was rightfully upon the protection of
society.
        The issue before this Court is not whether the sentence is one that we would have
imposed, but whether the sentence is plainly excessive under any reasonable view of the facts.
Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the
sentence is excessive, we are not free to substitute our view for that of the district court. Id.
Having thoroughly reviewed the record in this case, we cannot say that the district court abused
its discretion.
C.      Rule 35 Motion
        Crow asserts the district court erred by failing to reduce his sentence after he presented
new evidence at his Rule 35 hearing. Crow submitted a number of affidavits, including one from
his sister indicating she had never previously seen Crow strike the victim and an affidavit from
the mother of Crow’s other son stating that son needs his father. Crow submitted a report from
an investigator which indicated the investigator believed Crow was honest and forthright with his
version of events, took responsibility for his actions, and did not intend to harm the victim at the
time of the crime. Finally, Crow had completed a parenting class.
        A motion for reduction of sentence under Rule 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


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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 the new information submitted with Crow’s Rule 35 motion, we conclude no
abuse of discretion has been shown.
                                              III.
                                        CONCLUSION
       The district court did not abuse its discretion in sentencing Crow to a unified term of
fifteen years, with a minimum period of confinement of nine years, or in denying Crow’s
Rule 35 motion for reduction of sentence. However, the district court erred by imposing a fine in
excess of the amount permitted under I.C. § 19-5307. Accordingly, we affirm Crow’s judgment
of conviction and sentence with respect to the term of imprisonment and the order denying
Crow’s Rule 35 motion for reduction of sentence. However, we modify Crow’s judgment of
conviction and sentence with respect to the fine under I.C. § 19-5307 and modify the
accompanying order imposing that fine.       The district court is hereby directed to enter an
amended judgment of conviction and sentence and accompanying order consistent with this
opinion.
       Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.




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