State of Idaho v. Seth Levi Cervin

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50899

STATE OF IDAHO, )
) Filed: May 31, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
SETH LEVI CERVIN, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Susie Jensen, District Judge.

Judgment of conviction and unified sentence of five years, with a minimum period
of confinement of three years, for aggravated assault, and concurrent 180 days for
driving under the influence and obstructing an officer, affirmed; order denying
I.C.R. 35 motion for reduction of sentence, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Jason C. Pintler, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________

Before GRATTON, Chief Judge; LORELLO, Judge;
and TRIBE, Judge
________________________________________________

PER CURIAM
Seth Levi Cervin pled guilty to an amended charge of aggravated assault, Idaho Code § 18-
905; misdemeanor driving under the influence, I.C. § 18-8004; and misdemeanor obstructing an
officer, I.C. § 18-701. In exchange for his guilty pleas, additional charges were dismissed. The
district court imposed a unified term of five years with three years determinate for aggravated
assault and concurrent 180 days on the misdemeanor charges. Cervin filed an Idaho Criminal Rule
35 motion, which the district court denied. Cervin appeals asserting that the district court abused

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its discretion by not placing him on probation, and further asserts that the district court abused its
discretion 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 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). That discretion includes
the trial court’s decision regarding whether a defendant should be placed on probation. I.C. § 19-
2601(3), (4); State v. Reber, 138 Idaho 275, 278, 61 P.3d 632, 635 (Ct. App. 2002); State v. Lee,
117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990). The record in this case shows that
the district court properly considered the information before it and determined that probation was
not appropriate.
Next, we review whether the district court erred in denying Cervin’s Rule 35 motion. A
motion for reduction of sentence under Rule 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). Upon review of the record, including any new information
submitted with Cervin’s Rule 35 motion, we conclude no abuse of discretion has been shown.
Therefore, Cervin’s judgment of conviction and sentences, and the district court’s order
denying Cervin’s Rule 35 motion, are affirmed.

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