State v. David Anthony Jacobo ( 2014 )


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  •                IN THE COURT OF APPEALS OF THE STATE OF IDAHO
    Docket No. 41884
    STATE OF IDAHO,                                  )      2014 Unpublished Opinion No. 793
    )
    Plaintiff-Respondent,                     )      Filed: October 31, 2014
    )
    v.                                               )      Stephen W. Kenyon, Clerk
    )
    DAVID ANTHONY JACOBO,                            )      THIS IS AN UNPUBLISHED
    )      OPINION AND SHALL NOT
    Defendant-Appellant.                      )      BE CITED AS AUTHORITY
    )
    Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
    County. Hon. Michael R. Crabtree, District Judge.
    Order revoking probation and requiring execution of modified, unified four-year
    sentence, with one-year determinate term, for possession of a controlled substance
    with the intent to deliver, affirmed; order relinquishing jurisdiction, affirmed.
    Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
    Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
    Attorney General, Boise, for respondent.
    ________________________________________________
    Before GUTIERREZ, Chief Judge; LANSING, Judge;
    and MELANSON, Judge
    PER CURIAM
    David Anthony Jacobo pled guilty to possession of a controlled substance with the intent
    to deliver. I.C. § 37-2732(a)(1)(B). The district court withheld judgment and placed Jacobo on
    probation for three years. Several months later, Jacobo admitted to violating the terms of his
    probation. The district court revoked Jacobo’s withheld judgment and probation and imposed a
    unified four-year sentence, with a two-year determinate term, but retained jurisdiction. After
    Jacobo completed evaluation at NICI, the district court relinquished jurisdiction. However, the
    district court modified Jacobo’s sentence to a unified term of four years, with a minimum period
    of confinement of one year. Jacobo filed an I.C.R. 35 motion for further reduction of his
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    sentence, which the district court denied. Jacobo appeals, contending that the district court
    abused its discretion in revoking his probation and the district court erred in relinquishing
    jurisdiction.
    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 Idaho Criminal Rule 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. State v. Urrabazo, 
    150 Idaho 158
    ,
    162, 
    244 P.3d 1244
    , 1248 (2010). 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. Sentencing is
    also a matter for the trial court’s discretion. Both our standard of review
    and the factors to be considered in evaluating the reasonableness of a sentence are well
    established and need not be repeated here. 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).
    When we review a sentence that is ordered into execution following a period of
    probation, we will examine the entire record encompassing events before and after the original
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    judgment. State v. Hanington, 
    148 Idaho 26
    , 29, 
    218 P.3d 5
    , 8 (Ct. App. 2009). We base our
    review upon the facts existing when the sentence was imposed as well as events occurring
    between the original sentencing and the revocation of probation. 
    Id. Applying the
    foregoing
    standards, and having reviewed the record in this case, we cannot say that the district court
    abused its discretion in revoking probation.
    Jacobo also asserts the district court erred in relinquishing jurisdiction. We note that the
    decision to place a defendant on probation or whether, instead, to relinquish jurisdiction over the
    defendant is a matter within the sound discretion of the district court and will not be overturned
    on appeal absent an abuse of that discretion. State v. Hood, 
    102 Idaho 711
    , 712, 
    639 P.2d 9
    , 10
    (1981); State v. Lee, 
    117 Idaho 203
    , 205-06, 
    786 P.2d 594
    , 596-97 (Ct. App. 1990). As noted
    above, however, the district court found that probation was not an appropriate course of action in
    Jacobo’s case.
    We hold that Jacobo has failed to show that the district court abused its discretion.
    Therefore, the order revoking probation and the order relinquishing jurisdiction are affirmed.
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