State v. Scott Henry Underhill ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37530
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 316
)
Plaintiff-Respondent, ) Filed: January 11, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
SCOTT HENRY UNDERHILL, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bingham County. Hon. Jon J. Shindurling, District Judge.
Order granting I.C.R. 35 motion for reduction of sentence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Spencer J. Hahn, 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 GUTIERREZ, Judge
PER CURIAM
Scott Henry Underhill pled guilty to one count of delivery of methamphetamine. I.C. §
37-2732(a)(1)(A). In exchange for his guilty plea, an additional count was dismissed. The
district court sentenced Underhill to a unified term of fifteen years, with a minimum period of
confinement of five years, to run concurrent with an unrelated sentence. Underhill filed an
I.C.R 35 motion, which the district court granted by suspending Underhill’s sentence and placing
him on probation for five years. Underhill appeals.
Initially, we note that a lower court’s decision to grant or deny a Rule 35 motion will not
be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126 Idaho 277, 281,
882 P.2d 444, 448 (Ct. App. 1994). 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,
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121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.
App. 1984); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982). Since the district
court later modified Underhill’s sentence, pursuant to his Rule 35 motion, we will only review
Underhill’s modified sentence for an abuse of discretion. See State v. McGonigal, 122 Idaho
939, 940-41, 842 P.2d 275, 276-77 (1992).
Underhill has the burden of showing a clear abuse of discretion on the part of the district
court in failing to further reduce the sentence on Underhill’s Rule 35 motion. See State v.
Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). Underhill has failed to show such an abuse
of discretion. Therefore, the district court’s order granting Underhill’s Rule 35 motion is
affirmed.
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