State v. Allen Lynn Berry

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40051

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 352
)
Plaintiff-Respondent, ) Filed: February 12, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
ALLEN LYNN BERRY, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Timothy L. Hansen, District Judge.

Judgment of conviction and unified sentence of ten years, with a minimum period
of confinement of four years, for burglary and concurrent unified term of five
years, with a minimum period of confinement of three years, for unlawful
possession of a firearm, affirmed.

Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________

Before LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge

PER CURIAM
Allen Lynn Berry pled guilty to burglary, I.C. § 18-1401, and unlawful possession of a
firearm, I.C. § 18-3316. In exchange for his guilty pleas, additional charges were dismissed and
the state agreed not to pursue an allegation that Berry was a persistent violator. The district court
sentenced Berry to a unified term of ten years, with a minimum period of confinement of four
years, and a concurrent unified term of five years, with a minimum period of confinement of

1
three years, for unlawful possession of a firearm. 1 Berry filed an I.C.R. 35 motion for reduction
of his sentences, which the district court denied. Berry appeals.
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). Applying these standards, and having reviewed the record
in this case, we cannot say that the district court abused its discretion.
Therefore, Berry’s judgment of conviction and sentence are affirmed.

1
The district court’s oral pronouncement indicates that the unlawful possession of a
firearm sentence was a total of five years, with a minimum period of confinement of three years.
The written judgment of conviction provides for a minimum period of confinement of two years.
It is the oral pronouncement of sentence that is controlling. Therefore, we view Berry’s sentence
as a unified term of five years, with a minimum period of confinement of three years.

2