State v. Richard Dean Henderson ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40842
STATE OF IDAHO, ) 2014 Unpublished Opinion No. 366
)
Plaintiff-Respondent, ) Filed: February 7, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
RICHARD DEAN HENDERSON, ) THIS IS AN UNPUBLISHED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. Melissa Moody, District Judge.
Order revoking probation and reinstating previously suspended unified three-year
sentence with one-year determinate term for aggravated assault, affirmed.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Chief Judge; LANSING, Judge;
and GRATTON, Judge
PER CURIAM
Richard Dean Henderson pled guilty to aggravated assault, Idaho Code § 18-901(b), and
the district court imposed a unified three-year sentence with a one-year determinate term. The
court suspended the sentence and placed Henderson on probation. This probation was
subsequently revoked and the suspended sentence ordered into execution. Henderson filed an
Idaho Criminal Rule 35 motion for reduction of his sentence, which the district court denied. On
appeal, Henderson does not challenge the district court’s decision to revoke probation, but argues
that the district court abused its discretion in failing to sua sponte reduce his sentence upon
revoking probation and in denying his I.C.R. 35 motion for reduction of sentence.
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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 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
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 the probation. Id. Thus, this Court will
consider the elements of the record before the trial court that are properly made part of the record
on appeal and are relevant to the defendant’s contention that the trial court should have reduced
the sentence sua sponte upon revocation of probation. State v. Morgan, 153 Idaho 618, 621, 288
P.3d 835, 838 (Ct. App. 2012).
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). Upon review of the
record, including the new information submitted with Henderson’s Rule 35 motion, we conclude
no abuse of discretion has been shown.
Therefore, the order revoking probation and directing execution of Henderson’s
previously suspended sentence and the order denying Henderson’s Rule 35 motion are affirmed.
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