State v. Zane Grey Tewalt

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40622

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 765 ) Plaintiff-Respondent, ) Filed: November 26, 2013 ) v. ) Stephen W. Kenyon, Clerk ) ZANE GREY TEWALT, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant.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, Benewah County. Hon. Fred M. Gibler, District Judge.

Judgment of conviction and unified sentence of five years, with a minimum period of confinement of one and one-half years, for attempted strangulation, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. ________________________________________________

Before LANSING, Judge; GRATTON, Judge; and MELANSON, Judge

PER CURIAM Zane Grey Tewalt pled guilty to attempted strangulation. I.C. § 18-923. The district court sentenced Tewalt to a unified term of five years, with a minimum period of confinement of one and one-half years. Tewalt filed an I.C.R 35 motion, which the district court denied. Tewalt appeals, arguing that the district court erred in refusing to retain jurisdiction, that his sentence is excessive, and that the district court erred in denying his Rule 35 motion for reduction of sentence. The decision whether to retain jurisdiction is a matter within the sound discretion of the district court and will not be overturned absent an abuse of that discretion. State v. Lee, 117

Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990). The primary purpose of a district court retaining jurisdiction is to enable the court to obtain additional information regarding whether the defendant has sufficient rehabilitative potential and is suitable for probation. State v. Jones, 141 Idaho 673, 677, 115 P.3d 764, 768 (Ct. App. 2005). Probation is the ultimate goal of retained jurisdiction. Id. There can be no abuse of discretion if the district court has sufficient evidence before it to conclude that the defendant is not a suitable candidate for probation. Id. Tewalt has not shown that the district court abused its discretion in not retaining jurisdiction. Sentencing is a matter for the trial court’s discretion. 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, 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). Applying these standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion. Next, we review whether the district court erred in denying Tewalt’s Rule 35 motion. 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). In conducting our review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review of the record, we conclude no abuse of discretion has been shown. Therefore, Tewalt’s judgment of conviction and sentence, and the district court’s order denying Tewalt’s Rule 35 motion, are affirmed.