               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39566

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 759
                                                 )
       Plaintiff-Respondent,                     )      Filed: December 14, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
KEITH DUANE CUNNINGHAM,                          )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

       Order denying motion to dismiss withheld judgment, affirmed; order denying
       motion to reconsider, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Keith Duane Cunningham appeals from the district court’s orders denying his motion to
dismiss his withheld judgment and denying his motion to reconsider.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Cunningham pled guilty to statutory rape. In 2002, the district court granted a withheld
judgment and ordered Cunningham to seven years of probation. In 2011, Cunningham filed a
motion to dismiss his withheld judgment, specifically noting he had complied with the terms of
his probation and that it would be in the best interest of society if the case was dismissed. After
a hearing, the district court denied the motion. Cunningham subsequently filed a motion to
reconsider, which the district court also denied. Cunningham appeals.




                                                1
                                                II.
                                           ANALYSIS
       Where a withheld judgment has been granted, the district court has discretion to dismiss
the case and discharge the defendant. Idaho Code § 19-2604; State v. Wiedmeier, 121 Idaho 189,
191, 824 P.2d 120, 122 (1992). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a three-prong inquiry to determine: (1) whether the lower
court correctly perceived the issue as one of discretion; (2) whether the lower court acted within
the boundaries of such discretion and consistently with any legal standards applicable to the
specific choices before it; and (3) whether the lower court reached its decision by an exercise of
reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). A motion for
reconsideration is reviewed under the same abuse of discretion standard. State v. Montague, 114
Idaho 319, 320, 756 P.2d 1083, 1084 (Ct. App. 1988).
       In his appeal, Cunningham concedes that under current law, “any offense requiring sex
offender registration as set forth in section 18-8304, Idaho Code, shall not be subject to dismissal
or reduction . . . .” I.C. § 19-2604. Statutory rape, a violation of Idaho Code § 18-6101, is an
offense that requires sex offender registration under section 18-8304. When Cunningham pled
guilty to statutory rape in 2001, section 19-2604(1) did not preclude him from applying for
dismissal of his withheld judgment. The trial court had discretion to grant dismissal upon a
satisfactory showing the defendant had “at all times complied with the terms and conditions upon
which he was placed on probation” and upon the trial court’s findings that there was “no longer
cause for continuing the period of probation” and that granting dismissal was “compatible with
the public interest.” I.C. § 19-2604 (2001) (amended 2006). In July 2006, section 19-2604 was
amended to preclude dismissal for individuals who have been convicted of offenses requiring sex
offender registration. 2002 Idaho Sess. Laws ch. 157, § 1.
       The Idaho Supreme Court has held that the amendment to section 19-2604 retroactively
applies to defendants who pled guilty prior to when the amendment took effect on July 1, 2006,
and does not violate ex post facto laws. State v. Forbes, 152 Idaho 849, 275 P.3d 864 (2012);
State v. Hardwick, 150 Idaho 580, 249 P.3d 379 (2011). The Court stated the Legislature
intended the amendment to apply to offenders who had already been granted a withheld
judgment, as is the case here. Forbes, 152 Idaho at 851, 275 P.2d at 866; Hardwick, 150 Idaho
at 582-83, 249 P.3d at 381-82.


                                                 2
       Although Cunningham concedes the law does not allow dismissal of his withheld
judgment, he contends “the law should not apply to him because that was not the agreement he
had with the State of Idaho when he entered into lawful probation contracts for several years
with this State.” As the State points out, Cunningham offers no basis for overruling controlling
precedent and provides no legal authority supporting the proposition that his contract with the
State entitles him to dismissal of the withheld judgment.
       The district court correctly perceived the motion to dismiss the withheld judgment as one
of discretion. More particularly, under the second prong of the abuse of discretion standard, the
district court relied on Idaho Supreme Court precedent interpreting section 19-2604 in
determining the bounds of the court’s discretion. We find no abuse of discretion by the district
court either in denying Cunningham’s motion to dismiss his withheld judgment or in denying
Cunningham’s motion for reconsideration.
                                               III.
                                        CONCLUSION
       We affirm the district court’s orders denying Cunningham’s motion to dismiss his
withheld judgment and denying Cunningham’s motion to reconsider.
       Chief Judge GRATTON and Judge LANSING CONCUR.




                                                3
