State v. James H. Berner ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38874
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 336
)
Plaintiff-Respondent, ) Filed: January 26, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
JAMES H. BERNER, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Second Judicial District, State of Idaho,
Idaho County. Hon. Michael J. Griffin, District Judge.
Order denying I.C.R. 35 motion for reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge; GUTIERREZ, Judge;
and MELANSON, Judge
PER CURIAM
James H. Berner was convicted by a jury of domestic battery, Idaho Code §§ 18-903, 18-
918(2)(a). The district court imposed a unified ten-year sentence with nine years determinate.
This Court affirmed Berner’s judgment of conviction and sentence. State v. Berner, Docket
No. 37968 (Ct. App. July 18, 2011) (unpublished). Berner filed an Idaho Criminal Rule 35
motion, which the district court denied. Berner appeals from the denial of his Rule 35 motion.
A Rule 35 motion is a request for leniency which is addressed to the sound discretion of
the sentencing 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
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201, 159 P.3d 838 (2007). Our focus on review is upon the nature of the offense and the
character of the offender. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App.
1982). Where a sentence is not illegal, the appellant must show that it is unreasonably harsh in
light of the primary objective of protecting society and the related goals of deterrence,
rehabilitation and retribution. State v. Broadhead, 120 Idaho 141, 145, 814 P.2d 401, 405
(1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992);
State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).
Having reviewed the record, including any new information submitted with Berner’s
Rule 35 motion, we find no abuse of discretion in the district court’s denial of the motion.
Accordingly, the district court’s order denying Berner’s I.C.R. 35 motion is affirmed.
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