State v. Gambino

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45885

STATE OF IDAHO, )
) Filed: December 18, 2018
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
GUY ROGER BRACALI GAMBINO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Lynn G. Norton, District Judge.

Judgment of conviction and unified sentence of five years, with a minimum
period of confinement of one year, for introducing articles into a jail, affirmed;
order relinquishing jurisdiction, affirmed; order denying I.C.R. 35 motion for
reduction of sentence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, 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 HUSKEY, Judge
________________________________________________

PER CURIAM
Guy Roger Bracali Gambino pled guilty to possession, introduction, or removal of certain
articles into or from correctional facilities. Idaho Code §§ 18-2510(3), 19-2520F. The district
court sentenced Gambino to a unified sentence of five years with one year determinate and
retained jurisdiction, to be served consecutive to a sentence in an unrelated case. Following the
period of retained jurisdiction, the district court relinquished jurisdiction. Gambino filed an
Idaho Criminal Rule 35 motion, which the district court denied. Gambino appeals asserting that

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the district court abused its discretion by imposing an excessive sentence, relinquishing
jurisdiction, and failing to reduce his sentence pursuant to I.C.R. 35.
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.
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.
We note that the decision to place a defendant on probation or whether, instead, to
relinquish jurisdiction over the defendant is a matter within the sound discretion of the district
court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102
Idaho 711, 712, 639 P.2d 9, 10 (1981); 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. We hold that Gambino
has failed to show that the district court abused its discretion in relinquishing jurisdiction.
Next, we review whether the district court erred in denying Gambino’s Rule 35 motion.
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). Upon review of the record, including
any new information submitted with Gambino’s Rule 35 motion, we conclude no abuse of
discretion has been shown.
Therefore, Gambino’s judgment of conviction and sentence, order relinquishing
jurisdiction, and the district court’s order denying Gambino’s Rule 35 motion, are affirmed.

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