State v. David Wayne Vogel ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37818
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 400
)
Plaintiff-Respondent, ) Filed: March 21, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
DAVID WAYNE VOGEL, ) THIS IS AN UNPUBLISHED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.
Judgment of conviction and unified sentence of seven years, with a minimum
period of confinement of three years, for possession of methamphetamine,
affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, 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; GUTIERREZ, Judge;
and MELANSON, Judge
PER CURIAM
David Wayne Vogel was found guilty of possession of methamphetamine. I.C. § 37-
2732(c)(1). The district court sentenced Vogel to a unified term of seven years, with a minimum
period of confinement of three years. The court retained jurisdiction but relinquished jurisdiction
prior to expiration of the period of retained jurisdiction. Vogel filed an I.C.R 35 motion, which
the district court denied. Vogel appeals his sentence and the denial of his I.C.R 35 motion.
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
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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 Vogel’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, Vogel’s judgment of conviction and sentence, and the district court’s order
denying Vogel’s Rule 35 motion, are affirmed.
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