State v. Steven Allen Mc Cabe ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38653
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 338
)
Plaintiff-Respondent, ) Filed: January 31, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
STEVEN ALLEN MCCABE, ) THIS IS AN UNPUBLISHED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,
Jerome County. Hon. John K. Butler, District Judge.
Order revoking probation and reinstating previously suspended unified five-year
sentence with one-year determinate term for possession of a controlled
substance, affirmed; order denying I.C.R. 35 motion for reduction of
sentence, affirmed.
Sara B. Thomas, 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
Steven Allen McCabe pled guilty to possession of a controlled substance, I.C. § 37-
2732(c)(1), and the district court imposed a unified five-year sentence with a one-year
determinate term. The court suspended the sentence and placed McCabe on probation.
Following numerous probation violations, McCabe’s probation was subsequently revoked and
the suspended sentence ordered into execution. McCabe filed an I.C.R. 35 motion for reduction
of his sentence, which the district court denied. On appeal, McCabe does not challenge the
district court’s decision to revoke probation, but argues only that this sentence is excessive, that
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the district court should have sua sponte reduced his sentence upon revocation of probation, and
that the district court erred in 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 and
need not be repeated here. 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).
When we review a sentence that is ordered into execution following a period of
probation, we will examine the entire record encompassing events before and after the original
judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our
review upon the facts existing when the sentence was imposed as well as events occurring
between the original sentencing and the revocation of probation. Id. Applying these standards,
and having reviewed the record in this case, we cannot say that the district court abused its
discretion.
McCabe also asserts the district court erred in denying his 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, the
district court did not err in denying McCabe’s Rule 35 motion.
Therefore, the order revoking probation and directing execution of McCabe’s previously
suspended sentence and the order denying his Rule 35 motion are affirmed.
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