State v. Richard John Breen ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37566
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 318
)
Plaintiff-Respondent, ) Filed: January 12, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
RICHARD JOHN BREEN, ) THIS IS AN UNPUBLISHED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. Deborah A. Bail, District Judge.
Judgment of conviction and concurrent unified sentences of life with a minimum
period of confinement of twenty-five years, for forcible sexual penetration by use
of a foreign object and robbery; order denying I.C.R. 35 motion for reduction of
sentence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Jordan E. Taylor, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge; LANSING, Judge;
and MELANSON, Judge
PER CURIAM
Richard John Breen pled guilty to forcible sexual penetration by use of a foreign object,
Idaho Code § 18-6608 and robbery, Idaho Code §§ 18-6501, 18-6502, with additional counts
being dismissed. The district court sentenced Breen to concurrent unified sentences of life with
twenty-five years determinate. Breen filed an Idaho Criminal Rule 35 motion, which the district
court denied. Breen appeals contending that the district court abused its discretion by imposing
excessive sentences.
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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.
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.
Breen states that this appeal is from the judgment of conviction and sentences as well as
the district court’s order denying his Rule 35 motion. While Breen provides no argument
specific to the Rule 35 motion, we have reviewed whether the district court erred in denying
Breen’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, Breen’s judgment of conviction and sentences, and the district court’s order
denying Breen’s Rule 35 motion, are affirmed.
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