State v. Dewayne E. Smith ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37525
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 379
)
Plaintiff-Respondent, ) Filed: March 3, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
DEWAYNE E. SMITH, ) THIS IS AN UNPUBLISHED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. John H. Bradbury, District Judge.
Judgment of conviction and unified sentence of four years, with a minimum
period of confinement of two years, for aggravated assault, affirmed; order
denying I.C.R. 35 motion for reduction of sentence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, 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
Dewayne E. Smith pled guilty to aggravated assault. Idaho Code §§ 18-901, 18-905.
The district court sentenced Smith to a unified term of four years, with a minimum period of
confinement of two years. Smith filed an Idaho Criminal Rule 35 motion, which the district
court denied. Subsequently, the district court entered an amended judgment of conviction
granting Smith credit for time served. Smith appeals asserting that the district court abused its
discretion by imposing an excessive sentence and by denying his Rule 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.
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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.
Next, we review whether the district court erred in denying Smith’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, Smith’s judgment of conviction and sentence, and the district court’s order
denying Smith’s Rule 35 motion, are affirmed.
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