State v. Ware, Jr

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45038

STATE OF IDAHO, ) 2018 Unpublished Opinion No. 425
)
Plaintiff-Respondent, ) Filed: April 18, 2018
)
v. ) Karel A. Lehrman, Clerk
)
THOR FITZGERALD WARE, JR., ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Madison County. Hon. Gregory W. Moeller, District Judge.

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

Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
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 LORELLO, Judge
________________________________________________

PER CURIAM
Thor Fitzgerald Ware, Jr. pled guilty to rape, Idaho Code § 18-6101(2). The district court
imposed a unified sentence of twelve years, with a minimum period of confinement of three
years, and retained jurisdiction. After the rider, the district court relinquished jurisdiction. Ware
filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the district court
granted, reducing Ware’s sentence to ten years, with a minimum period of confinement of two
and one-half years. Ware appeals, asserting that the district court abused its discretion in
declining to further reduce his sentence.

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Initially, we note that a lower court’s decision to grant or deny a Rule 35 motion will not
be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126 Idaho 277, 281,
882 P.2d 444, 448 (Ct. App. 1994). Both our standard of review and the factors to be considered
in evaluating the reasonableness of the sentence are well established. See State v. Hernandez,
121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Toohill, 103 Idaho 565, 650 P.2d 707
(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). Since the district court
later modified Ware’s sentence, pursuant to his Rule 35 motion, we will only review Ware’s
modified sentence for an abuse of discretion. See State v. McGonigal, 122 Idaho 939, 940-41,
842 P.2d 275, 276-77 (1992).
Ware has the burden of showing a clear abuse of discretion on the part of the district
court in failing to further reduce the sentence on his Rule 35 motion. See State v. Cotton, 100
Idaho 573, 577, 602 P.2d 71, 75 (1979). Ware has failed to show such an abuse of discretion.
Accordingly, the order of the district court granting Ware’s Rule 35 motion is affirmed.

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