State v. Salvador Magana, Jr.

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36576

STATE OF IDAHO, ) 2010 Unpublished Opinion No. 630
)
Plaintiff-Respondent, ) Filed: September 8, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
SALVADOR MAGANA, JR., ) THIS IS AN UNPUBLISHED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, Twin
Falls County. Hon. G. Richard Bevan, District Judge.

Order revoking probation and requiring execution of unified five-year sentence,
with two-year determinate term, for felony eluding a peace officer, affirmed;
order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
______________________________________________

Before LANSING, Chief Judge; GUTIERREZ, Judge;
and MELANSON, Judge

PER CURIAM
Salvador Magana, Jr. pled guilty to felony eluding a peace officer. I.C. §§ 49-1404(2),
49-236(4). The district court imposed a unified five-year sentence with a two-year determinate
term, but after a period of retained jurisdiction, suspended the sentence and placed Magana on
probation. Subsequently, Magana admitted to violating the terms of his probation, and the
district court consequently revoked probation and ordered execution of the original sentence.
Magana filed an I.C.R. 35 motion for reduction of his sentence, which the district court denied.
Magana appeals, contending that the district court abused its discretion in revoking probation and
that the sentence is excessive.

1
It is within the trial court’s discretion to revoke probation if any of the terms and
conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122
Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772
P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App.
1988). In determining whether to revoke probation a court must examine whether the probation
is achieving the goal of rehabilitation and consistent with the protection of society. State v.
Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834
P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation
has been established, order that the suspended sentence be executed or, in the alternative, the
court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at
326, 834 P.2d at 328; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). A
decision to revoke probation will be disturbed on appeal only upon a showing that the trial court
abused its discretion. Beckett, 122 Idaho at 326, 834 P.2d at 328.
Sentencing is also a matter for the trial court’s discretion. Both our standard of review
and the factors to be considered in evaluating the reasonableness of a 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.
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

2
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.
Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either in revoking probation or in ordering
execution of Magana’s original sentence or in denying Magana’s Rule 35 motion for reduction of
sentence. Therefore, the order revoking probation and directing execution of Magana’s
previously suspended sentence and the order denying his Rule 35 motion are affirmed.

3