State v. Barber

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46590

STATE OF IDAHO, )
) Filed: May 20, 2019
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
JESSE STEPHEN BARBER, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Joel E. Tingey, District Judge.

Order denying Idaho Criminal Rule 35 motion for reduction of
sentence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Jenevieve C. Swinford,
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; LORELLO, Judge;
and BRAILSFORD, Judge
________________________________________________

PER CURIAM
Jesse Stephen Barber was found guilty of felony intimidating a witness, Idaho Code § 18-
2604, and violating a no-contact order, I.C. § 18-920. The district court imposed a unified five-
year sentence with a two-year determinate term. Barber filed an Idaho Criminal Rule 35 motion
for reduction of sentence, which the district court denied. Barber appeals, asserting the district
court abused its discretion in denying his Rule 35 motion and declining to retain jurisdiction.
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

1
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 Barber’s Rule 35 motion, we conclude no
abuse of discretion has been shown.
The primary purpose of the retained jurisdiction program is to enable the trial court to
obtain additional information regarding the defendant’s rehabilitative potential and suitability for
probation, and probation is the ultimate objective of a defendant who is on retained jurisdiction.
State v. Chapel, 107 Idaho 193, 687 P.2d 583 (Ct. App. 1984); State v. Toohill, 103 Idaho 565,
567, 650 P.2d 707, 709 (Ct. App. 1982). There can be no abuse of discretion in a trial court’s
refusal to retain jurisdiction if the court already has sufficient information upon which to
conclude that the defendant is not a suitable candidate for probation. State v. Beebe, 113 Idaho
977, 979, 751 P.2d 673, 675 (Ct. App. 1988); Toohill, 103 Idaho at 567, 650 P.2d at 709. Based
upon the information that was before the district court at the time of sentencing, we hold that the
district court did not abuse its discretion when it declined to retain jurisdiction in this case.
Therefore, the district court’s order denying Barber’s Rule 35 motion is affirmed.

2